Chapter 5 - Sentences and Orders On Conviction

Chapter
5
SENTENCES AND ORDERS ON CONVICTION
I Grenville Cross SBS, QC, SC and Jack Chan
Sect. Para.
I. Procedure between verdict or plea and sentence . . . . . . 5–1
A. Determining the facts for the purposes of sentence . . 5–1
B. Arrest of judgment . . . . . . . . . . . . . . . . . . 5–2
C. Relevance of other offences . . . . . . . . . . . . . 5–3
D. Sample counts and specimen charges . . . . . . . . 5–7
E. Interpreting the verdict of the jury. . . . . . . . . . 5–9
F. Questioning the verdict of the jury . . . . . . . . . . . . 5–10
G. Strict liability offences. . . . . . . . . . . . . . . . . 5–11
H. Pleas of guilty . . . . . . . . . . . . . . . . . . . . . 5–12
I. Burden of proof . . . . . . . . . . . . . . . . . . . . 5–15
J. Information on effect of the offence on the
victim: Victim impact statement . . . . . . . . . . . 5–18
K. Taking offences into consideration . . . . . . . . . 5–19
L. Antecedents . . . . . . . . . . . . . . . . . . . . . . 5–26
M. Function of prosecution in relation to sentence . . 5–28
N. Pre-sentence reports . . . . . . . . . . . . . . . . . 5–30
O. Mitigation – procedure . . . . . . . . . . . . . . . . 5–31
P. Adjournments after conviction and before sentence. . 5–32
Q. Imposing sentence: Sentencing guidelines . . . . . 5–35
R. Obligation to give reasons . . . . . . . . . . . . . . 5–36
S. Commencement of sentence . . . . . . . . . . . . . 5–39
T. Alteration of sentence . . . . . . . . . . . . . . . . 5–41
U. Committal for sentence . . . . . . . . . . . . . . . . 5–46
V. Remitting juveniles . . . . . . . . . . . . . . . . . . 5–48
II. Sentences of imprisonment. . . . . . . . . . . . . . . . . . 5–51
A. Age . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–51
B. Maximum sentences: Penalty provisions . . . . . . . 5–54
C. Remission of sentence . . . . . . . . . . . . . . . . 5–73
D. Time served prior to imposition of sentence . . . . 5–74
E. Plea of guilty . . . . . . . . . . . . . . . . . . . . . . . . . 5–83
F. Consecutive sentences of imprisonment . . . . . . . 5–86
G. Totality of sentences. . . . . . . . . . . . . . . . . . 5–91
H. Disparity of sentence . . . . . . . . . . . . . . . . . 5–93
I. Selected aggravating factors . . . . . . . . . . . . . 5–100
J. Selected mitigating factors . . . . . . . . . . . . . . 5–101
K. Offenders who assist the police . . . . . . . . . . . . . . 5–102
L. Suspended sentences of imprisonment . . . . . . . 5–104
M. Life imprisonment . . . . . . . . . . . . . . . . . . 5–119
N. Automatic life sentences . . . . . . . . . . . . . . . 5–135
O. Extended sentences . . . . . . . . . . . . . . . . . . 5–137
III. Sentences and measures for offenders under 21 . . . . . . . . 5–142
A. Introduction . . . . . . . . . . . . . . . . . . . . . . 5–142
B. General provisions . . . . . . . . . . . . . . . . . . 5–143
C. Detention centre orders . . . . . . . . . . . . . . . 5–152
D. Training centre orders . . . . . . . . . . . . . . . . 5–173
E. Rehabilitation centre orders . . . . . . . . . . . . . 5–200
F. Reformatory school . . . . . . . . . . . . . . . . . . 5–226
G. Orders against parents or guardians . . . . . . . . . 5–247
H. Care and protection orders. . . . . . . . . . . . . . 5–250
I. Supervision after release . . . . . . . . . . . . . . . 5–258
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§ 5–1 Sentences and Orders on Conviction [Chap. 5
J. Probation . . . . . . . . . . . . . . . . . . . . . . . 5–262
K. Drug addiction treatment centre orders . . . . . . . 5–263
L. Discharge . . . . . . . . . . . . . . . . . . . . . . . 5–264
IV. Discharge, binding over and community orders . . . . . . 5–265
A. Discharge . . . . . . . . . . . . . . . . . . . . . . . 5–265
B. Binding over. . . . . . . . . . . . . . . . . . . . . . 5–271
C. Community service orders . . . . . . . . . . . . . . 5–279
D. Drug addiction treatment centre orders . . . . . . . 5–292
E. Probation orders . . . . . . . . . . . . . . . . . . . 5–309
F. Supervision orders . . . . . . . . . . . . . . . . . . 5–328
V. Financial penalties and orders . . . . . . . . . . . . . . . . 5–351
A. Fines . . . . . . . . . . . . . . . . . . . . . . . . . . 5–351
B. Compensation orders . . . . . . . . . . . . . . . . . 5–365
C. Restitution orders . . . . . . . . . . . . . . . . . . . 5–382
VI. Forfeiture orders . . . . . . . . . . . . . . . . . . . . . . . 5–393
VII. Disqualification . . . . . . . . . . . . . . . . . . . . . . . . 5–445
A. Disqualification from driving . . . . . . . . . . . . . 5–445
B. Disqualification of company directors . . . . . . . . 5–447
VIII. Orders under the Mental Health Ordinance . . . . . . . . 5–456
A. Hospital orders . . . . . . . . . . . . . . . . . . . . 5–456
B. Guardianship orders . . . . . . . . . . . . . . . . . 5–471
IX. Miscellaneous matters. . . . . . . . . . . . . . . . . . . . . 5–482
A. Sentence of death . . . . . . . . . . . . . . . . . . . 5–482
B. Pardon . . . . . . . . . . . . . . . . . . . . . . . . . 5–483
C. Solitary confinement . . . . . . . . . . . . . . . . . 5–487
D. Review of sentence . . . . . . . . . . . . . . . . . . 5–488
X. Criminal bankruptcy . . . . . . . . . . . . . . . . . . . . . 5–489
XI. Enhancement of sentences . . . . . . . . . . . . . . . . . . 5–497
A. Organized and Serious Crimes Ordinance . . . . . 5–497
B. Enhanced sentences under other Ordinances . . . 5–502
XII. National Security Law . . . . . . . . . . . . . . . . . . . . . 5–507
XIII. Cases on quantum. . . . . . . . . . . . . . . . . . . . . . . 5–522
I. PROCEDURE BETWEEN VERDICT OR PLEA AND SENTENCE
A. Determining the Facts for the Purposes of Sentence

(1) Summary
5–1 An offender must be sentenced only for those offences of which he has been found
guilty, or which he has admitted. The object of sentencing is “to address the crimin-
ality for which an accused should properly bear responsibility”: HKSAR v Chan, Peter
(CACC 102/2004, [2005] HKEC 1080), CA, per Yeung JA. The duty of the courts is
to impose appropriate sentences for the offences of which the defendant has been
convicted: Secretary for Justice v Tse Sheung Kai [2001] 1 HKLRD 487. If the calculation
of a correct sentence involves the fact finder in deciding whether an inference ad-
verse to the defendant may be drawn, the starting point “is to examine the primary
facts”: HKSAR v Gurung Laxman [2017] 3 HKLRD 483 [44], per McWalters JA.
Where an offender is convicted by the jury, the court must adopt the factual impli-
cations of the verdict as the basis of the sentence, where it is clear that the verdict can
have been reached only on one basis. If, however, where the verdict may have been
reached on a number of different bases, the court may form its own view of the facts,
so long as it is consistent with the verdict and supported by evidence.
Where a defendant pleads guilty to an offence, but advances a version of the facts of
the offence that is substantially different from the version put forward by the prosecu-
tion, the court must determine which version of the facts is to be adopted as the basis
of the sentence. If the issues can be clarified by amending the indictment to include
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Sect. I] Procedure Between Verdict or Plea and Sentence § 5–4
a count which will reflect the difference in the versions, that course may be adopted,
but otherwise the court must hear evidence on the matter in issue or adopt the ver-
sion put forward by the defendant as the basis of the sentence. However, if a version
is advanced which is clearly implausible or which makes no practical difference to
sentence, the court is not bound to hear evidence: HKSAR v Yee Yiu Sam [2002] 3 HKC
21 [37].
The sentencing judge or magistrate should expressly state the starting point and
the extent of any discount given and, where a defendant who pleaded guilty is not to
be given the usual discount, state the reasons for not giving such discount: HKSAR v Lin
Yu [2005] 3 HKLRD 127.
The sentence for a particular type of offence should be in accordance with the prac-
tice prevailing at the time of the commission of that offence: see HKSAR v Mok Yiu Kau
[2007] 4 HKC 586.
B. Arrest of Judgment
At common law, a defendant may, after verdict, seek an arrest of judgment, or stay 5–2
of proceedings, on the basis of some legal error. The motion must be based on some
objection arising on the face of the record, such as a fundamental defect in the indict-
ment which cannot be cured by the verdict. The court may of its own motion arrest
judgment. In R v Waddington (1800) 1 East 143. If judgment is arrested, the defendant
is entitled to be discharged. The court may also, of its own motion, arrest the judg-
ment, as where it decides the indictment does not disclose an offence known to law.
However, the motion in arrest of judgment has now been superseded by the appellate
procedure in the Criminal Procedure Ordinance (Cap 221). In R v Laming (1990) 90
Cr App R 450, it was held that there was no justification for the procedure embarked
upon by the trial judge which had been, in effect, to turn himself into a Court of
Appeal. The proper course would have been to make an immediate application to the
Court of Appeal for leave to appeal.
C. Relevance of other Offences

(2) Notes on determining the facts for the purposes of sentence
Relevance of other offences apparently committed by the offender
disclosed by the evidence against him
An offender must be sentenced only for the offences of which he has been con- 5–3
victed, or which he has admitted either by his plea or by asking for the offences to be
taken into consideration: R v Lai Yiu Ching [1968] HKLR 666, R v Cheng Chi Keung
[1983] 1 HKC 371, R v O’Prey [1999] 2 Cr App R (S) 83, and HKSAR v Yeung Chuen Tai
[2010] 4 HKLRD 342.
If a defendant is convicted of common assault, the sentencing court is not pre-
cluded from considering injuries resulting from the assault simply because the de-
fendant could have been charged with assault occasioning actual bodily harm: R v
Nottingham Crown Court, Ex p DPP [1996] 1 Cr App R (S) 283, DC.
A defendant convicted of unlawful trafficking in dangerous drugs should not be
sentenced on the basis that he has been involved in manufacturing the drugs as there
was no manufacturing charge before the court and his complicity in manufacturing
had not been proved: HKSAR v Poon Kam Wing [2012] 4 HKLRD 555.
Relevance of other offences apparently committed by the offender

disclosed by statements which are not evidence against him
The defendant should not be sentenced on the basis of other offences with which 5–4
he has not been charged and disclosed in material which is not part of the case against
him: HKSAR v Wan Ka Kit [2006] 3 HKLRD 9. If other offences are to be relevant,
the indictment must be appropriately drawn, although the court is not required to
blind itself to the obvious: R v Twisse [2001] 2 Cr App R (S) 9, as approved in Tyack v
Mauritius [2006] UKPC 18:
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Relevance of other offences of which the offender has been acquitted
by verdict of the jury
5–5 Where a defendant has been tried for a number of offences, and has been ac-
quitted of some and convicted of others, or has been convicted of a lesser offence
than that charged in the indictment, the court must accept the implications of the
verdict in determining the factual basis of the sentence: see R v Ajit Singh (1981) 3
Cr App R (S) 180, CA (wrong to sentence defendant acquitted of wounding with
intent on the basis that the wounding was “deliberate”); R v Hazelwood (1984)
6 Cr App R (S) 52, CA (wrong to sentence offender convicted of common as-
sault on basis that the assault was with intent to resist arrest); R v Keles (1988)
10 Cr App R (S) 78, CA; and R v Baldwin (1989) 11 Cr App R (S) 139, CA. The
implications of the jury’s verdict must be respected: Kwok Yau Shing v R [1967]
HKLR 664.
Relevance of other offences included in the indictment in respect of

which the prosecution has not proceeded
5–6 Where the prosecution does not proceed on counts to which the defendant has
pleaded not guilty, the court must sentence on the basis that he is not guilty of those of-
fences: R v Booker (1982) 4 Cr App R (S) 53, CA; R v Stubbs 10 (1988) Cr App R (S) 97, CA.
D. Sample Counts and Specimen Charges

5–7 Where it is alleged that a defendant has committed a large number of offences
of a similar character, it is common practice for the indictment to be limited to a
relatively small number of counts that are representative of the larger number of
offences that it is alleged the defendant has committed. Where the defendant ad-
mits the whole range of offences alleged against him, it is open to the court to pass
sentence on the basis of all the offences alleged, but where the defendant disputes
the matters alleged against him which are not included as counts in the indictment,
the court must pass sentence on the basis of the matters alleged specifically in the
indictment, and ignore any other allegations which are disputed: R v Clark [1996]
2 Cr App R (S) 351, CA.
If a defendant is indicted and convicted on a count charging him with criminal con-
duct of a specified kind on a single specified occasion or on a single occasion within a
specified period, but such conduct was said by the prosecution to be representative of
other criminal conduct of the same kind on other occasions, the court should not take
account of such other conduct so as to increase the sentence if the defendant did not
admit the commission of the other offences and does not ask the court to take them
into consideration: R v Canavan; R v Kidd; R v Shaw [1998] 1 Cr App R 79, CA. A de-
fendant cannot lawfully be punished for offences for which he has not been indicted
and which he has denied or declined to admit.
The fact that the accused faces “sample” charges does not affect sentence; the au-
thorities can, if they wish, prosecute the accused subsequently on further charges: R v
Chow Tat Ming [1997] HKLRD 353; HKSAR v Lee Woon Fai (CACC 366/1998, [1999]
HKLRD (Yrbk) 340).
Matters of aggravation which are constituent elements of other

offences of equivalent gravity not included in the indictment
5–8 Situations may arise where the defendant is charged with an offence and a factor al-
leged as part of the case against him, which aggravates the offence, is itself an element
in some other offence, of equivalent gravity, which has not been charged in the in-
dictment. A defendant charged with evading the prohibition on the importation of a
controlled drug and alleged to have imported the drug with a view to sale, may claim
that his importation is solely for personal use. In R v Ribas (1979) 63 Cr App R 147, the
Court of Appeal rejected a submission that in such a case the court was not entitled
to proceed on the basis that the importation was with a view to sale in the absence of
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a conviction for possession with intent to supply. Importation had been treated in the
legislation as “a category of offence on its own which is separate and distinct from the
categories of possessing a drug once it has got into this country.” A similar approach
was adopted in the context of common law affray in R v Cooke (1987) 9 Cr App R
(S) 116, CA.
In R v Wong Ming (CACC 607/1994, 14 March 1995), Bokhary JA indicated that
where a robber carried a firearm at the time of the robbery, a separate firearm count
was not required as the possession of the firearm was “always taken into account
for the pur-pose of the sentence of the robbery count.” But see also R v Ng Wai-
Man (CACC 111/1995, 21 May 1996). A sexual attack upon a robbery victim will
attract an extra count as consecutive sentences are appropriate: R v Lam Chun Po
(CACC 552/1990, [1991] HKLY 362), Att-Gen v Chan Kwok Sau (CAAR 6/1994). If a
robber injures his victim, this will be reflected in the sentence imposed on the rob-
bery count: Secretary for Justice v Ma Ping-Wah [2000] 2 HKLRD 312.
A separate wounding charge is not required if the injury is subsumed into another
count on the indictment, such as robbery, and treated as an aggravating factor. If,
however, both counts are laid, and one is not proceeded with, it is hard for a court
to take the facts pertaining to it into account for the purposes of sentence on one
remaining count.
In R v Lawrence (1981) 3 Cr App R (S) 49, CA, the appellant pleaded guilty to cul-
tivating cannabis: a count for possessing cannabis with intent to supply was not pro-
ceeded with. The court referred to the “very strong suspicion that you were growing
cannabis so that some of it might get into other people’s hands”. An appeal against
sentence was allowed on the basis that the judge had difficulty in “banishing from his
mind” the matter covered in the count not proceeded with.
E. Interpreting the Verdict of the Jury

Problems of interpreting the verdict of the jury for the purpose of sentence can 5–9
arise where the jury has found the defendant not guilty on one count and guilty on
another, often a lesser included offence. If the verdict of the jury can be explained
only on one view of the facts, that view must be adopted as the basis of the sen-
tence: Kwok Yau Shing v R [1967] HKLR 664. However, if more than one view of the
facts would be consistent with the verdict, the court may form its own view, to the
criminal standard, as to the factual basis upon which to pass sentence: R v Chan Kai-
lun [1971] HKLR 45; R v Cheng Chi Keung [1983] 1 HKC 371; R v Tonti [1989] 1 HKLR
72; R v Solomon and Triumph (1984) 6 Cr App R (S) 120, CA (authorities reviewed); R
v McGlade (1990-91) 12 Cr App R (S) 105, CA (if the verdict of the jury left open some
important issue which might affect the sentence, then the court, having heard all the
evidence itself in the course of the trial, was free to decide where the truth lay, and
was obliged to do so). The court should give the defendant the benefit of any doubt
where there are competing interpretations, and it is unsure of any of them: Yuen
Man Chiu v R (CACC 399/1980); R v King [2017] 2 Cr App R (S) 6 [31]. The Court
of Appeal will not interfere with a finding of fact made by the judge in such circum-
stances if the judge has properly directed himself, unless the court considers that no
reasonable jury could have reached the judge’s conclusion: R v Wood (1993) 13 Cr
App R (S) 207, CA.
If the verdict is consistent with two views of the facts and it would have been possible
to amend the indictment so as to obtain the jury’s view, then the judge must adopt
the more favourable view: R v Efionayi (1995) 16 Cr App R (S) 380, CA. It is not, how-
ever, permissible to obtain the view of the jury on a question which, while critical to
sentence, does not reflect a distinction in the substantive law, by adding a count to the
indictment containing particulars which are not necessary to substantiate the charge
in law: R v Young (1990-91) 12 Cr App R (S) 279, CA (defendant willing to plead guilty
to buggery of female on the basis that she consented; lack of consent was not an essen-
tial ingredient of the offence; count added with particulars alleging lack of consent;
held, such course was understandable but unjustified as it involved leaving to the jury
an issue which it was not for them to determine; if the issue required resolution, it was
441
a matter for the judge); R v Dowdall and Smith (1992) 13 Cr App R (S) 441, CA (below,
§22–9): see also R v Cranston (1993) 14 Cr App R (S) 103, CA.
Where a note from the jury suggests that they are considering alternative bases for
a conviction, but the verdict does not make clear the exact basis of the conviction, the
judge is not bound to pass sentence on the more favourable basis. He must decide the
basis on which to pass sentence, applying the criminal standard: R v Cloud [2001] 2 Cr
App R (S) 97, CA; R v Mills [2003] Crim L R 896.
In most cases, the question in issue will be decided on the basis of evidence called
in the course of the trial, but if no evidence has been called touching on the issue, it is
open to the court to hold a Newton hearing (see §§5–13 et seq, below) to determine
the matter: see R v Finch (1993) 14 Cr App R (S) 226, CA.
F. Questioning the Verdict of the Jury

5–10 It is generally undesirable for a court to ask a jury to explain the basis of its verdict: R
v Soloman and Triumph (1984) 6 Cr App R (S) 120. This may cause confusion: Chan
Charn Kau v R [1972] HKLR 241, 245 An exception to this rule arises if the offence is
manslaughter, and the jury may have returned its verdict on one of several bases: R v
Wong Sai Ming (CACC 317/1994, [1994] HKLY 426). If it might affect sentence in a
manslaughter case, the judge should ascertain the precise basis of the verdict: HKSAR
v Sudirman (CACC 486/2003, [2004] HKEC 1061). Once the jury has explained itself,
effect should be given to its decision, even if the court finds the reasoning illogical: R
v Baldwin (1989) 11 Cr App R (S) 139.
Where it is proposed to attempt to elicit the basis of the jury’s verdict, the necessary
questions should preferably be left with the jury when they retire: the foreman should
not be asked to indicate the basis on which the verdict has been reached after the ver-
dict has been returned.
If, after sentence, the jury indicate that they have convicted the defendant on a fac-
tual basis which differs from that adopted by the judge for the purpose of sentence,
but the determination of the relevant issue is out with the scope of the jury’s responsi-
bility, the judge is not bound to vary the sentence to one consistent with the view of the
facts adopted by the jury: R v Paul Raymond Mills [2004] 1 Cr App R (S) 332.
G. Strict Liability Offences

5–11 In R v Jackson [2007] 1 Cr App R 28, Hooper LJ said: “At the sentencing stage, ei-
ther by use of a Newton hearing ((1983) 77 Cr App R 13) or by some other means, it is
important for the court to determine the level of culpability to the criminal standard
of proof. A pilot who knowingly or recklessly flies his plane at less than 100 ft may ex-
pect a higher sentence than one who flies lower than that height negligently (as did
the appellant). Likewise if there is no knowledge or recklessness or negligence then it
may well be the appropriate penalty is one of an absolute discharge.” For a criticism of
this decision, see Criminal Law Week 06/39/4.
(For strict liability as a factor in mitigation of sentence, see Cross & Cheung’s
Sentencing in Hong Kong (9th Ed., LexisNexis), under “Moral culpability”,
[30-247]–[30-255]).
H. Pleas of Guilty
5–12 Sentence is normally passed on the basis of the facts disclosed in the witness state-
ments of the prosecution and the facts opened on behalf of the prosecution, unless
the plea was the subject of a written statement of the basis of the plea that the prosecu-
tion accepts. If the prosecution does not accept the defence account, and if the dis-
crepancy between the two accounts was such as to have a potentially significant effect
on the level of sentence, then consideration must be given to the holding of a Newton
hearing to resolve the issue. The initiative rests with the defence, which was asking
the court to sentence on a basis other than that disclosed by the prosecution case: R v
Tolera [1999] 1 Cr App R (S) 25.
It sometimes happens that when a defendant describes the facts of an offence to
a probation officer for purposes of a pre-sentence report, he gives an account which
442
differs from that which emerged from the prosecution case. While the sentencing
judge will read this part of the pre-sentence report, he will not ordinarily pay attention
for purposes of sentence to any account of the crime given by the defendant to the
probation officer where it conflicted with the prosecution case. If the defendant wants
to rely on such an account by asking the court to treat it as the basis of sentence, it is
necessary that the defence should expressly draw the relevant paragraphs to the atten-
tion of the court and ask that it be treated as the basis of sentence: R v Tolera [1999] 1
Cr App R (S) 25. The issue can then be resolved, if necessary, by calling evidence; see
Re JK Stonham [1977-9] HKC 287.
In R v Chung Kam Fai [1993] 1 HKCLR 178, 187, [1993] 1 HKC 42, 51, it was said if
a judge was not prepared to accept the mitigation, he should “have so indicated and
have given counsel the opportunity to call evidence in support thereof” (per Power
JA). However, if the mitigation “is clearly implausible, then a judge is not bound to
hear evidence”: HKSAR v Yee Yiu Sam [2002] 3 HKC 21 [37] (per Stock JA). If, the miti-
gation “is far removed from common sense”, it can simply be disregarded: HKSAR v
Tsang On Yan [2019] 5 HKLRD 100 [54], [2020] 2 HKC 529, 544 (per Zervos JA). If
the issue is not clear-cut, the defendant may have to testify and face cross-examination.
In the absence of any specific finding, sentence will normally be passed on the basis
of the factual version most favourable to the defendant: R v Sato Hiroyuki [1994] 1
HKCLR 119; HKSAR v Chow Kam Lung [2010] 4 HKLRD 253.
In R v Myers [1996] 1 Cr App R (S) 187, the English Court of Appeal commended
the practice of writing down the basis on which the plea was accepted. But in R v
Beswick [1996] 1 Cr App R (S) 343, CA, it was held that the court was not bound by a
version of the facts agreed between the parties. He was entitled to direct that a Newton
hearing (below) take place. If he did so, this did not provide a basis for withdrawing a
plea of guilty, providing it was clear that the accused was admitting guilt of the offence
charged. If the judge directed a Newton hearing, it was the duty of the prosecution
to assist the court by calling evidence and testing any evidence called on behalf of
the defence. The issues to be tried should be clearly identified and there should be
agreement as to which prosecution witnesses were to be called and which to be read.
See also Att-Gen v Ki Hon [1988] 2 HKLR 220, CA and R v Lester (1976) 63 Cr App R
144, CA.
In Att-Gen’s Reference (No 81 of 2000) (R v Jacobs) [2001] 2 Cr App R (S) 16, CA,
and in Att-Gen’s Reference (No 58 of 2000) (R v Wynne) [2001] 2 Cr App R (S) 19, CA,
the court commented on the undesirability of accepting a basis of plea which did not
reflect the evidence and which restricted the sentencing options of the judge. In R v
Robotham [2001] 2 Cr App R (S) 69, CA, it was held that the decision of a judge to
adjourn a case for sentence did not give rise to a legitimate expectation on the part
of the defendant that the court had accepted the basis of plea (which had not been
challenged by the prosecution), and that a judge dealing with the case subsequently
was entitled to insist on a Newton hearing before passing sentence.
Where a plea of guilty is accepted on a particular basis, but a subsequent pre-
sentence report discloses information suggesting that the true view of the facts is more
serious, the contents of the report should be canvassed, so that the basis on which the
court is to proceed is clear: R v Cunnah [1996] 1 Cr App R (S) 393, CA.
If there is a plea of guilty in a situation where the defendant ought to have been
tried in a court with greater sentencing powers, the defendant should still receive a
meaningful discount from the maximum sentence that the sentencing court is em-
powered to impose, although “a discount can be regarded as meaningful even though
it is less than a discount of one-third”: HKSAR v Au Yeung Chuen Yee [2013] 5 HKC 1.
Newton hearing
It is an ‘essential rule” that if, following a plea of guilty, there is a discrepancy be- 5–13
tween the basis of the plea and the prosecution case which could potentially have a
significant effect on sentence, both sides must alert the judge, “so that consideration
can be given to holding a Newton hearing’: Secretary for Justice v Chan Yiu Tung, Anthony
[2018] 1 HKC 434.
The procedure to be followed where conflicting versions of the facts of the offence
are put forward was considered in R v Newton (1983) 77 Cr App R 13, CA. Lord Lane
443
CJ said that in some cases it was possible to obtain an answer from a jury, where the dif-
ferent versions could be reflected in different charges in the indictment. The second
method was for the judge himself to hear the evidence on one side and another, and
come to his own conclusion, acting so to speak as his own jury. The third possibility
was for the judge to hear no evidence, but to listen to the submissions of counsel; but if
this course was adopted, “if there is a substantial conflict between the two sides … the
version of the defendant must so far as possible be accepted.” Where a Newton hearing
is held, the usual one-third discount does not apply and the extent of reduction of the
sentence becomes a matter within the judge’s discretion: HKSAR v Yan Siru [2004] 3
HKLRD 347. See also HKSAR v Liu Lin Feng (CACC 206/2011, [2012] HKEC 605).
In these circumstances, a discount in the region of 20 per cent will often be ap-
propriate: HKSAR v Leung Cho Yi (CACC 385/2008, [2009] HKEC 686). The lesser
discount is justified on the basis that the defendant has wasted the time of the court as
well as public money: HKSAR v Lam Chor Ping [2010] 1 HKLRD 670.
Where there is a substantial conflict in the versions of the facts of the offence, and
the court is not willing to sentence on the basis of the defendant’s version, the court
must proceed to hear evidence on the question, whether or not counsel for the de-
fence wishes such a hearing to take place: R v Smith (PA) (1986) 8 Cr App R (S) 169,
CA; Williams v R (1983) 77 Cr App R 329, DC.
A Newton hearing is not confined to cases where there is a “formal dispute” between
the prosecution and the defence after a guilty plea; as long as there is “a material discrep-
ancy between the prosecution and the defence on the facts for sentencing which could
have a significant effect on the sentence, the court has to decide whether to hold a Newton
hearing”: Secretary for Justice v Chan Yiu Tung, Anthony [2018] 1 HKC 434. The psychological
impact of the crime on the victim may, for example, require resolution.
If the judge, having read the committal papers from the Magistrates Court, forms
the view that the summary of facts presented by the parties does not reflect the true
facts of the case, it is open for him to order a Newton hearing: HKSAR v Mohammad
Nadim [2010] 1 HKC 281.
Where a Newton hearing takes place, evidence is called in the normal way by
counsel: see R v McGrath and Casey (1983) 5 Cr App R (S) 460, CA; the judge should
not put questions until counsel have completed their examination: see R v Myers
[1996] 1 Cr App R (S) 187. The judge should direct himself in accordance with the
normal criminal standard of proof: see R v McGrath and Casey, above, and R v Nabil
Ahmed (1984) 6 Cr App R (S) 391, CA; when announcing his decision, he should in-
dicate that he has done so: R v Kerrigan (1993) 14 Cr App R (S) 179, CA. If the case
involves an issue of identification, the judge should approach the matter as if he were
a jury and direct himself in accordance with the “Turnbull guidelines”: see R v Gandy
(1989) 11 Cr App R (S) 564, CA. The prosecution must not put forward a version of
the facts in the course of a “Newton hearing” which would be consistent with a more
serious offence than the one to which the offender has pleaded guilty: see R v Druce
(1993) 14 Cr App R (S) 691, CA. In so far as R v Nottingham Crown Court, Ex p DPP
[1996] 1 Cr App R (S) 283, DC, implies that the prosecution may allege facts in a
Newton hearing which show that the defendant is guilty of a more serious offence, it
should not be followed.
If the court rejects the version put forward by the accused after hearing evidence,
an appeal to the Court of Appeal on the basis that the factual question was wrongly
determined will “only succeed in clear cases” which will be “rare indeed”, when the
accused has given evidence himself: see R v Nabil Ahmed [2010] 1 HKC 281.
If the defendant’s version is rejected, the court may properly withhold part of the
discount which he would normally receive in recognition of his plea of guilty: R v Lee
Chiu Pang [1995] 2 HKC 523; HKSAR v Liu Lin Pang (CACC 206/2011, 3 May 2012).
The credit for the plea is “to some extent offset by the conduct of the appellant in
taking a stance which in the end did not commend itself to the court”: HKSAR v Tong
Kim Ching (CACC 481/2001, [2002] HKLRD (Yrbk) 382).
If the defendant’s version is rejected, the court may properly withhold part of the
discount which he would normally receive in recognition of his plea of guilty: R v Lee
Chiu Pang [1995] 2 HKC 523; HKSAR v Liu Lin Pang (CACC 206/2011, 3 May 2012).
The credit for the plea is “to some extent offset by the conduct of the appellant in
444
taking a stance which in the end did not commend itself to the court”: HKSAR v Tong
Kim Ching (CACC 481/2001, [2002] HKLRD (Yrbk) 382).
In R v Underwood [2005] 1 Cr App R (S) 13, CA, it was said that (i) if there was a
difference between the prosecution evidence and the factual basis on which the de-
fendant intended to plead guilty, responsibility for taking the initiative and alerting
the prosecutor to the disputed areas rested with the defence; (ii) where there was an
agreed basis of plea it should be written down and signed by both advocates; where it
was not signed by both advocates, the judge was entitled to ignore it; if the prosecu-
tion disputed the defendant’s version, the areas of dispute should be identified so as
to focus the court’s attention on the precise facts in dispute; (iii) where the prosecu-
tion had no evidence to dispute the defendant’s account then, particularly if the facts
relied on by the defendant arose from his own personal knowledge and depended on
his own account of the facts, they should not normally agree that account unless it was
supported by other material; (iv) after submissions, the judge had to decide how to
proceed; the judge was not bound by any agreement as to the plea, and was entitled
to insist that any evidence relevant to the facts in dispute be called; (v) where it was
necessary, relevant evidence should be called by the prosecution and defence, particu-
larly where the issue arose from facts which were within the exclusive knowledge of the
defendant; the defendant should be called, if willing, to give evidence; if he did not
give evidence then, subject to any explanation offered, the judge might draw such in-
ference as he saw fit; the judge could reject the evidence called by the prosecution or
by the defendant or his witnesses, even if the prosecution had not called contradictory
evidence; but the judge’s reasons should be explained in a judgment; (vi) there would
be occasions when a Newton hearing (see the main work) would be inappropriate;
some issues, particularly where the defendant denied committing a specific criminal
offence, would require a jury’s verdict; and the judge could not make findings of
fact and pass sentence on a basis that was inconsistent with pleas to counts already
approved by the court; particular care was needed in relation to a multi-count indict-
ment involving one defendant, or an indictment involving a number of defendants;
where there was a joint enterprise the judge, while reflecting on the individual basis
of pleas, should bear in mind the seriousness of the joint enterprise on which all were
involved; (vii) matters of mitigation were not normally dealt with by way of a Newton
hearing but it was always open to the court to allow a defendant to give evidence as to
matters of mitigation; (viii) if the issues at such a hearing were resolved entirely in a
defendant’s favour, credit for the guilty plea should not be reduced; if the defendant
was disbelieved, or required a prosecution witness to be called, or if the defendant
showed no insight into the consequences of his offence and no genuine remorse,
then the discount might be reduced; and there might be exceptional circumstances
in which the entitlement to credit would be wholly dissipated by the Newton hearing;
and, in such cases, the judge should explain his reasons.
When there are disputes as to facts relevant to or closely bound up with the ingre-
dients of an offence, a Newton hearing is required and the prosecution must establish
their version of the facts (facts that the prosecution seeks to rely on) to the requisite
criminal standard of proof: Strbak v R [2020] HCA 10 (B55/2019) [32]. Such an ap-
proach only applies to a situation where the prosecution seeks to rely on, or is obliged
to establish, the disputed facts. When a defendant seeks to establish facts, disputed
by the prosecution, for the purpose of mitigation, the approach is different: HKSAR v
Chong Chee Meng [2008] 6 HKC 407.
There is an evidential burden on the defendant, but not a persuasive burden: HKSAR
v Ng Po On [2008] 4 HKLRD 176. The burden is discharged on the balance of prob-
abilities: HKSAR v Cheung Cho Fat [2010] 5 HKC 400.
Pleas of guilty – when a Newton hearing is unnecessary

The cases establish three situations where, although there is a dispute over the facts 5–14
of the case, the court is not obliged to hear evidence under the principles laid down
in R v Newton, above:
(a) The first exception is where the difference in the two versions of the facts is
immaterial to the sentence: R v Kam Chun Pang (CACC 504/1991, 14 July
445
1992): HKSAR v Pau Lai Sing [2010] 3 HKLRD 233, HKSAR v Cheng Cho Fat
[2010] 5 HKC 400. If the court does not hear evidence, it should specifically
proceed on the defendant’s version: R v Hall, above; see also R v Sweeting 9 Cr
App R (S) 372, CA.
(b) The second exception is where the defence version can be described
as “manifestly false” or “wholly implausible”: HKSAR v Tong Chi Keung
(CACC 332/1997): see also R v Hawkins 7 Cr App R (S) 351, CA; R v
Bilinski (1987) 9 Cr App R (S) 360, CA; and R v Mudd (1988) 10 Cr App
R (S) 22, CA). See also R v Palmer (1994) 15 Cr App R (S) 123, CA and
R v Broderick [1970] Crim L R 155, CA, (couriers claiming to believe
that they were carrying cannabis as opposed to a Class A drug). If the
mitigation advanced by the defendant is farfetched and unbelievable,
a Newton Hearing is not required: HKSAR v Yau Wai Man [2010] 3
HKC 503.
(c) The third exception is the case where the matters put forward by the de-
fendant do not amount to a contradiction of the prosecution case, but
rather to extraneous mitigation explaining the background of the offence
or other circumstances which may lessen the sentence. These matters are
likely to be outside the knowledge of the prosecution: see R v Broderick
[1970] Crim L R 155, CA.
Where the facts put forward by the defence do not contradict the prosecution evi-
dence, the cases justify the following propositions:
(a) The defendant may seek to establish his mitigation through counsel
or by calling evidence. The decision whether to call evidence is his re-
sponsibility, and there is no entitlement to an indication from the court
that the mitigation is not accepted: Gross v O’Toole (1982) 4 Cr App R
(S) 283, DC; but such an indication is desirable: R v Tolera [1999] 1 Cr
App R 25, CA.
(b) The prosecution is not bound to challenge the matters put forward by the
defendant, by cross-examination or otherwise: R v Kerr (1980) 2 Cr App R
(S) 54, CA, but may do so: R v Ghandi (1986) 8 Cr App R (S) 391, CA; R v
Tolera; R v Tolera [1999] 1 Cr App R 25, CA.
(c) The court is not bound to accept the truth of the matters put forward by
the defendant, whether or not they are challenged by the prosecution: Tam
Man Ho v R [1967] HKLR 26, Att-Gen v Ki Hon [1988] 2 HKLR 220.
(d) In relation to extraneous matters of mitigation raised by the defendant, a
civil burden of proof rests on the defendant, although in the general run
of cases the court would accept the accuracy of counsel’s statement: R v
Guppy (1995) 16 Cr App R (S) 25, CA.
I. Burden of Proof
5–15 It is for the prosecution to prove beyond reasonable doubt the facts affecting
sentence, and which might result in a more severe punishment: HKSAR v Chong
Chee Ming [2008] 6 HKC 407. If there is a plea of guilty, this “does relieve the
prosecution of the obligation to prove the facts of the primary case on which it
is sought to have the appellant sentenced without assistance from her”: Strbak v R
[2020] HCA 10 (B55/2019) [33]. At the same time, there is an evidential burden
(but not a reverse persuasive burden) on the defendant to raise an issue for the
consideration of the court: HKSAR v Ng Po On [2008] 4 HKLRD 176. This requires
the defendant to adduce evidence which is sufficiently substantial to raise a rea-
sonable doubt which the prosecution must negative. If a defendant pleads guilty to
trafficking in dangerous drugs but claims in mitigation that the drugs were for self-
consumption and sharing with friends, the matter, if disputed, should be resolved
by the calling and testing of evidence in a Newton hearing: HKSAR v Chong Heung
Sang [2010] 3 HKC 88. On the other hand, in advancing matters of evidence which
differ from the agreed summary of facts, the burden lies on the defence, a burden
to be discharged on the balance of probabilities: HKSAR v Cheung Cho Fat [2010]
5 HKC 400.
446
On the other hand, in advancing matters of evidence which differ from the agreed
summary of facts, the burden lies on the defence, a burden to be discharged on the
balance of probabilities: HKSAR v Cheung Cho Fat [2010] 5 HKC 400.
Pleas of guilty – evidence given in the trials of co-defendants

A judge, in sentencing a defendant who has pleaded guilty, may take into account 5–16
evidence given during the trial of a co-defendant who pleaded not guilty. He must,
however bear in mind that self-serving statements are likely to be untrue, and that the
evidence given during the trial was not tested by cross-examination on behalf of the
defendant who pleaded guilty; such a defendant should be given the opportunity to
give evidence of his version of the facts: R v Smith (Patrick) (1988) 10 Cr App R (S) 271,
CA (preferring R v Taggart (1979) 1 Cr App R (S) 144, CA, and R v Depledge (1979) 1
Cr App R (S) 183 at 183, CA, to R v Michaels and Skoblo (1981) 3 Cr App R (S) 188, CA);
R v Winter, Colk and Wilson [1997] 1 Cr App R (S) 331, CA.
Defendant changing plea during trial

Where a defendant changes his plea to guilty during the course of his trial, but 5–17
his plea is tendered on a basis different from that put forward by the prosecution,
it is wrong for the court to sentence the offender on the basis of the version of
the facts put forward by the prosecution without hearing evidence from the de-
fendant: see R v Mottram (1981) 3 Cr App R (S) 123, CA; R v Archer (1994) 15 Cr
App R (S) 387, CA.
J. Information on Effect of the Offence on the Victim:

Victim Impact Statement
Under s 27 of the Organized and Serious Crimes Ordinance (Cap 455), the pros- 5–18
ecution can submit a victim impact statement setting out the short and long term
effects of the crime for the court. The prosecutor will only do this if an enhanced
sentence is sought.
A victim impact statement is a recognized means of informing the court about the
crime and its consequences: HKSAR v Chan Li Fat [2010] 5 HKC 341. See also R v Perks
[2001] 1 Cr App R (S) 19, for the approach adopted by the English courts. In many
cases, however, the effects of the crime upon the victim may be assumed, without re-
course to a victim impact statement, and “commonsense conclusions” may be drawn
from the evidence: HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 (not following, on
this point, HKSAR v Chung Chi Wing [2010] 5 HKC 75).
In cases of child sexual abuse, “a victim impact statement assessment report should,
subject of course to the consent of the victim and the sensible assessment of pros-
ecuting counsel, always be produced”: Secretary for Justice v Leung Yuet Hung [2014] 3
HKLRD 304 [39], per Stock VP.
For some offences, deterrent sentences are required to “mark the public abhor-
rence of the crimes and redress the grievance suffered by the victim, her relatives and
friends”; this is so irrespective of the defendant’s “previous good character”: HKSAR v
Ho Tung Yuen [2011] 5 HKC 586, per Yeung VP.
K. Taking Offences into Consideration

Jurisdiction to take offences into consideration
Once a defendant has been convicted of an offence, the courts are sometimes 5–19
willing to take into consideration in the determination of sentence other offences with
which he is not charged but which he admits to having committed. This practice devel-
oped at common law, and was approved by England’s Court of Criminal Appeal in R v
Syres (1908) 1 Cr App R 172. In R v Bachelor (1952) 36 Cr App R 64, Lord Goddard CJ
described the practice as “a convention under which, if a court is informed that there
are outstanding charges against a prisoner who is before it for a particular offence,
447
the court can, if the prisoner admits the offences and asks that they should be taken
into account, take them into account, which means that the court can give a longer
sentence than it would if it were dealing with him on the charges mentioned in the
indictment.”
The practice of taking offences into consideration is based partly on the common
law and partly on legislation. In the Court of First Instance and the Magistrates Court,
it is recognised as a matter of convention that other offences may sometimes be taken
into account as part of the sentencing process faced by a defendant. In the District
Court, section 81 of the District Court Ordinance (Cap 336) (see §5–21, below) makes
express provision for other offences to be taken into consideration when a sentence is
passed on a defendant, subject to his agreement and the consent of the prosecution.
Section 81(1) (Cap 336) incorporates within the jurisdiction of the District Court a
power to “take into consideration any indictable offence not included in any of the
categories specified in Part III of the Second Schedule to the Magistrates Ordinance
and, notwithstanding the provisions of this or any other Ordinance, any offence tri-
able summarily only.”
If a defendant has been charged with an offence or offences, these should not nor-
mally be disposed of by way of taking them into consideration: Leung Choi v Kendall
[1961] HKLR 649. In Law Kwok Wah v R [1981] HKC 109, the Court of Appeal said “we
think a court should exercise great caution before taking into consideration charges
which are before the court for plea or trial. Before the court adopts the course of
taking such charges into consideration it should enquire into the reasons suggested
for not hearing the charges, and the record should show that reasons have been asked
for and provided, and what those reasons are”, per O’Connor J. After arraignment, the
defendant is entitled to a verdict on the charges he faces: Chan Kam Sang v R [1946-
1972] HKC 672.
Efficacy of the procedure

5–20 In R v Bernard Webbe [2002] 1 Cr App R (S) 82, the English Court of Appeal, per
Rose LJ, observed that the convention of taking offences into consideration is “prag-
matically based, and is of benefit to the police and to a defendant. It is of benefit for
the police in clearing up offences. It is of benefit to the defendant because he avoids
the need to have to appear on another occasion to be dealt with for offences which
he now admits.”
In HKSAR v Ma Kim Hung (CACC 33/2002, [2002] HKEC 575), the Court of
Appeal, per Lugar-Mawson J, remarked that it was not desirable for a charge sheet
to be overloaded by too many charges, and to avoid this situation recourse could
be had to the procedure for taking offences into consideration and “we urge the
Department of Justice to use this procedure in future cases where it is appropriate
to do so.” The caveat, however, is that “it is not generally desirable that a very large
number of offences should be taken into consideration when there are compara-
tively few offences in the indictment and when the offences taken into consideration
are of a different kind from those in the indictment”: R v Bernard Webbe [2002] 1 Cr
App R (S) 82.
In Chan Lam Fai, Frankie v R [1973] HKLR 148, the Full Court, per Huggins J, ex-
plained that the purpose of the practice of taking offences into consideration “is and
always has been to enable a convicted person who has been punished to know that he
has expiated all his crimes and that he can make a new start without fear of having
some past misdeed raised against him.”
Application of the procedure

5–21 In R v Walsh (8 March 1973), the English Court of Appeal, per Scarman LJ, de-
scribed the procedure to be applied when offences are taken into consideration in
this way:
“First of all, the police have to prepare the list or the schedule which has to be served
upon an accused person. If it is known that he intends to plead guilty, this schedule
can be served before arraignment, perhaps some days before the day of the trial. If he
448
is going to plead not guilty, then it may be that such a list should not be served until
after he has been found guilty. All that one can say of the standards to be observed
by the police in the preparation and service of the list is that they should exercise
meticulous care in the preparation of the list and they should ensure that when the
list is given to him, his signature is obtained, and in so far as it is within the power of
the police to ensure it, they should ensure that he gets an opportunity of studying the
list before he signs it, and certainly, of course, before he has to deal with it in Court.
But ensuring that he gets the list well before he has to face the Court on a plea of
guilty is not as easy in practice as it is easy to describe. When the matter is dealt with
in Court, it would seem to be the best practice that the police officer responsible for
serving the list should be called to say that it was served, and that he had the docu-
ment signed by the accused man. But in any event, it is the Court’s responsibility at
this stage to ensure that the accused man, who after all in this matter is acting in con-
cert and agreement with the Court, understands the document that he has received,
and has a proper opportunity, which means time, to consider the document; if neces-
sary, time can be given by adjournment. Before proceeding to sentence, the Court
must be clear not only that he understands the document that he has received and
has had time to study it, but that he accepts that the listed offences are offences which
he has committed and that he desires them to be taken into consideration. If this con-
ventional practice is to continue to the benefit of the administration of justice and to
the benefit of the accused person, the burden is on the Court, and to a lesser extent
on the police, to ensure that the man has a full opportunity of understanding what he
is being asked to accept. If that is done, then the practice of benefit to all concerned.”
If a defendant wishes to have offences taken into consideration and the prosecution
is agreeable, a schedule of the offences should be prepared and signed by the de-
fendant. The signing ought ideally to take place at court, in the presence of the judge
or magistrate. The defendant should state explicitly in open court that he wishes an of-
fence to be taken into consideration: Anderson v Director of Public Prosecutions [1978]
AC 964. It does not suffice for counsel to speak on behalf of his client in this regard.
If there is any doubt as to the guilt of the defendant on any offence which he wishes
to have taken into consideration, the court ought not to allow that course to be fol-
lowed: R v Davies (1981) 72 Cr App R 262.
Effect of taking offences into consideration

If an offence is taken into consideration when a defendant is sentenced for another 5–22
offence, he will be liable to an enhanced sentence: Attorney General v Yim Yee Kwong
[1981] 1 HKC 101. In Law Fuk Chung v R (CACC 448/1978), the Court of Appeal, per
Pickering JA, observed that if the procedure was adopted this “should be reflected in
a stiffening of one of the sentences imposed in respect of a substantive charge – usu-
ally the most serious.” The sentence, however, must still be “one which the offence
charged in the indictment would carry”: R v Neal [1949] 2 KB 590.
The way in which the court deals with offences which it agrees to take into consider-
ation depends very much on context. In R v Miles [2006] EWCA Crim 256, the English
Court of Appeal, per Sir Igor Judge P, explained:
“In some cases the offences taken into consideration will end up by adding
nothing or nothing very much to the sentence which the court would otherwise
impose. On the other hand, offences taken into consideration may aggravate the
sentence and lead to a substantial increase in it. For example, the offences may
show a pattern of criminal activity which suggests careful planning or deliberate
rather than casual involvement in a crime. They may show an offence or offences
committed on bail, after an earlier arrest. They may show a return to crime im-
mediately after the offender has been before the court and given a chance that,
by committing the crime, he has immediately rejected. There are many situations
where similar issues may arise. One advantage to the defendant, of course, is that
if once an offence is taken into consideration, there is no likely risk of any fur-
ther prosecution for it. If, on the other hand, it is not, that risk remains. In short,
offences taken into consideration are indeed taken into consideration. They are
not ignored or expunged or disregarded.”
449
If an offence is taken into consideration against a defendant, this does not amount
to a conviction of that offence: R v Howard (1990-1991) 12 Cr App R (S) 426. A plea of
autrefois convict is therefore not available in the event of further proceedings involving
the offence, although the practice is not to proceed with an offence previously taken
into consideration: R v Nicholson (1948) 32 Cr App R 98. In the unlikely event that
fresh proceedings are instituted against a defendant, he should not face an additional
punishment upon conviction, and may instead expect to be treated “with consider-
able leniency”: Lo Ying v R [1967] HKLR 471. Double punishment is to be avoided as
a matter of principle.
A distinction is to be made between the situation in which the defendant has other
offences taken into consideration after his conviction, and the situation in which the
defendant is convicted of an offence or offences which are said by the prosecution
to be specimen counts, representative of a wider criminality. In the latter situation, a
higher sentence ought not to be imposed, although it may in the former. The court
should not sentence the defendant on the basis that he is guilty of further offences of
a similar nature unless he admits that this is so: R v Raymond Clark [1996] 2 Cr App R
351. A defendant cannot lawfully be punished for offences of which he has not been
indicted and which he has denied or declined to admit: R v Canavan, Kidd and Shaw
[1998] 1 Cr App R 79.
Matters which should not be taken into consideration

5–23 The agreement that an offence should be taken into consideration is one which,
ultimately, is reached between the defendant and the court. The court may decide,
even if the defendant and the prosecution wish this course to be adopted, that such a
disposal is not appropriate in a particular case. The court is in no sense bound by an
agreement of the parties, and is not required to rubber-stamp what the parties them-
selves consider to be an appropriate means of disposing of the case.
A charge should not be taken into consideration if the public interest requires that
it ought to be the subject of a separate trial: R v McClean (1910-1911) 6 Cr App R 26.
A court should not take into consideration an offence which it does not have jurisdic-
tion to try: Law Kwok Wah v R [1981] HKC 109; HKSAR v Wong Tak Po (HCMA 914/
2002) (save for the District Court, see §5–16, above, and §5–21 and §5–21A, below).
An offence should not be taken into consideration if it is one in respect of which a
court is required to disqualify the offender from driving or endorse his driving licence
in the event of conviction (such steps not being possible where the offence is taken
into consideration): R v Simons (1953) 37 Cr App R 120. A court should not take into
consideration an offence in respect of which an order of conditional discharge has
been made, when sentencing the offender for a further offence committed while the
order is in effect: R v Webb [1953] 2 QB 390.
This procedure is not appropriate if the other offences are more serious than, or
dissimilar to, the offence in respect of which sentence is to be passed: Lui Shu Tong
v R [1961] HKLR 129. A civil offence committed by a soldier may properly be taken
into consideration, notwithstanding that it would otherwise be dealt with by court-
martial: R v Anderson (1958 42 Cr App R 91).
District Court Ordinance (Cap 336), s 81
5–24 The District Court Ordinance (Cap 336) alone makes provision for offences to be
taken into consideration, as follows:
Court may take into consideration outstanding offences on application of accused and consent of
prosecution
81.—(1) Where an accused person is convicted of an offence, the Court may, on the
application of the person convicted and with the consent of the prosecution, in passing
sentence on such person take into consideration any other offence of a similar nature
which the convicted person admits having committed and which he desires the Court
to deal with.
(2) Under subsection (1) the Court may take into consideration any indictable of-
fence not included in any of the categories specified in Part III of the Second Schedule
to the Magistrates Ordinance and, notwithstanding the provisions of this or any other
Ordinance, any offence triable summarily only.
450
Effect of s 81 (Cap 336)
This legislation limits the District Court to only taking into consideration offences 5–25
which are similar to those charged, whereas the Court of First Instance and the
Magistrates Court are not, at common law, so constrained. However, most offences
which are taken into consideration are, in practice, similar to those charged. The
Ordinance also permits the District Court to take into consideration offences which it
has no jurisdiction to try, something that cannot be done in the Magistrates Court. It
is noteworthy that the legislation provides that offences are to be taken into consider-
ation “on the application of the person convicted.” At common law, in both the Court
of First Instance and the Magistrates Court, the initiative may come instead from the
prosecution: Chan Lam Kai v R [1973] HKLR 148.
L. Antecedents
Practice Direction: Antecedent Statement (Court of First Instance)
The Practice Direction - 9.3, “Criminal Proceedings in the Court of First Instance”, 5–26
at Part 8, entitled “Antecedent Statement”, dated 8 May 2017, and effective 12 June
2017, regulates antecedent material in that venue. Part 8 provides:
8.1 For all cases committed to the Court of First Instance, a proof of evidence
(antecedent statement) in respect of the defendant should be prepared by the law
enforcement officer. The statement shall contain particulars of the defendant’s age,
education and employment, the date of arrest, and the date (if known) of the last dis-
charge from prison or other place of custody. If known, it may also contain a short and
concise statement as to the defendant’s domestic and family circumstances.
8.2 The proof may contain statements of information or belief with the sources and
grounds thereof. The presiding judge will decide what weight, if any, to attach to such
statements or whether to call further evidence.
8.3 The antecedent statement and the defendant’s previous criminal convictions, if
any, are to be filed and served in accordance with the procedural timetables. Where
the defendant pleads guilty, the documents should be included in the Paginated Plea
and Sentence Bundle as set out in (para) 3.1.2.
The Police also provide antecedent statements in the District Court. In the
Magistrates’ Court, however, it is the usual practice for the prosecution to produce
only a criminal record and the defence then provides the background information
that would, in a higher court, be supplied by the prosecution.
Statutory provisions
The Criminal Procedure Ordinance (Cap 221), section 63 provides a method 5–27
whereby previous convictions may be proved in any criminal proceedings if not ad-
mitted by the accused. The court can be presented with:
(1) A certificate – “in Form 6 in the First Schedule” signed by an authorised police
officer certifying the particulars of any previous convictions extracted from
the criminal records kept by him, and certifying that copies of the fingerprints
exhibited to the certificate are copies of the fingerprints appearing from such
records.
(2) A certificate – “in Form 7 in the First Schedule” – signed by an authorised police
officer present at the taking of the fingerprints from the person before the
court or magistrate in exercise of the powers conferred by section 59 of the
Police Force Ordinance, or by order or the court or magistrate, certifying that
fingerprints exhibited to the certificate are those of such person.
(3) A certificate – “in Form 8 in the First Schedule” – signed by an authorised police
officer certifying that the copies of the fingerprints exhibited to Form 6 and the
fingerprints exhibited to Form 7 are those of the same person.
Some statutes require the court to request antecedent material before passing sen-
tence. Section 109A of the Criminal Procedure Ordinance requires:
(1) No court shall sentence a person of or over 16 and under 21 years of age to
imprisonment unless the court is of opinion that no other method of dealing
451
with such person is appropriate; and for the purpose of determining whether
any other method of dealing with any such person is appropriate the court shall
obtain and consider information about the circumstances, and shall take into
account any information before the court which is relevant to the character of
such person and his physical and mental condition.
(1A) This section shall not apply to a person who has been convicted of any offence
that is declared to be an excepted offence by the Third Schedule.
This section, however, is not mandatory: R v Yip Yuk Ching [1987] 3 HKC 234. The
“requirement to obtain information was not absolute and the sentencing court could
determine, without resort to obtaining information pursuant to s.109A, that the only
appropriate sentence was imprisonment”: Secretary for Justice v Leung Hiu-yeung [2018]
HKCFA 43 [52], [2018] 6 HKC 99.
Section 54A of the Dangerous Drugs Ordinance (Cap 134) also requires the court
to consider reports before passing sentence if an accused is convicted either of un-
lawful possession of dangerous drugs, contrary to section 8, or unlawful possession
of apparatus fit and intended for the smoking, inhalation, ingestion or injection of a
dangerous drug, contrary to section 36 then:
(1) Subject to subsection (1A), no sentence, other than a non-custodial sentence,
shall be imposed on a person for an offence against section 8 or 36 unless
the court has first considered a report of the Commissioner of Correctional
Services on the suitability of such person for cure and rehabilitation and on the
availability of places at addiction treatment centres.
This is mandatory: Att-Gen v Chan Ching-Ho [1994] 2 HKCLR 218. It must be com-
plied with no matter how many times an accused has previously been sentenced to the
drug addiction treatment centre: Att-Gen v Chan Tak King [1989] 2 HKLR 428: see also
HKSAR v Yan Suk Yin [2004] 1 HKLRD 677.
M. Function of Prosecution in Relation to Sentence

5–28 The duty of the prosecuting counsel is to assist the court to do justice to the de-
fendant who is to be sentenced, and this may be achieved in various ways.
The duty of prosecuting counsel is to assist the court to do justice to the defendant
who is to be sentenced, albeit within strict parameters. In HKSAR v Chan Yiu Shing
(HCMA 377/2016, [2017] CHKEC 369), it was said that “prosecuting counsel should
not influence the trial court by advocacy in regard to sentence, nor should he be per-
mitted to invite the court to pass a heavy sentence or a specific type of sentence’ (per
A Wong J, at [110]).
In Att-Gen’s Reference (No 7 of 1997) (R v Fearon) [1998] 1 Cr App R (S) 268, CA, Lord
Bingham CJ said that the practice of reticence by prosecuting counsel in matters of
sentencing began before the Attorney-General had power to refer unduly lenient sen-
tences to the Court of Appeal, when sentencing provisions were less complex than
they are today, and before sentencing decisions were as fully reported as they are now.
Judges should not be slow to invite assistance from prosecuting counsel in these mat-
ters and counsel should be ready to offer assistance if asked. The court hoped that
judges would not be affronted if prosecuting counsel did offer to give guidance on the
relevant provisions and appropriate authorities. To similar effect, see R v Beglin [2003]
1 Cr App R (S) 21, (it is the obligation of counsel for the prosecution to bring to the at-
tention of the court any matters of law relevant to sentence); and AG’s Reference (No 52
of 2003) (R v Webb) [2004] Crim L R 306, (it is the duty of counsel for the prosecution,
in a case where there were guidelines sentencing cases, to indicate, before sentencing,
to the judge that there were such authorities, and that copies were available should
the judge wish to see them; this practice should be meticulously followed, and counsel
who failed to do so could expect a frosty reception in the Court of Appeal).
As to the prosecution’s function and duty in relation to disputed issues of fact
(Newton hearings, etc), see R v Tolera [1999] 1 Cr App R (S) 25, and R v Beswick [1996]
1 Cr App R (S) 343, CA, §§5–13 (above).
If there is a plea of guilty, a Summary of Facts to be placed before the court for the
purposes of sentencing will need to be settled, and this will be “a matter of negotiation
between defence counsel and prosecutor”: HKSAR v Wong Ka Chun [2016] 4 HKC 424.
452
Although a plea of guilty is the “formal admission of each of the legal ingredients of
the offence”, the prosecution is still required “to prove matters on which it relies that
are adverse to the accused to the criminal standard”: Strbak v R [2020] HCA 10 (B55/
2019) [32].
As to the duty of prosecution counsel to tell the court of guidelines and tariff cases,
including those which set out relevant sentencing principles see Att-Gen v Jim Chong
Shing [1990] 1 HKLR 131, CA, applied in HKSAR v Tran Van Ha [2002] 3 HKLRD L8.
As to the duty to ensure that the court does not proceed under any error of law or fact;
see Att-Gen v Yan Chun Fong [1993] 1 HKCLR 42. Prosecutors should always ascertain
the maximum sentence, for if the judge makes a mistake it is counsel’s duty to point it
out: R v Brown [1996] 2 Cr App R (S) 2.
If the defendant is not represented, it is appropriate for the prosecuting counsel
to inform the court of any mitigating circumstances of which it may not be aware: see
Code of Conduct of the Bar of Hong Kong SAR (2017) (para 10.71.
Prosecutor’s role under section 27 of the Serious Crimes Ordinance

(Cap 455)
Under s 27 of the Organized and Serious Crimes Ordinance (Cap 455) the prose- 5–29
cutor’s role is increased so that he is entitled in respect of certain specified offences to
place further matters before the Court of First Instance or the District Court, includ-
ing the nature and extent of any harm caused by the convicted person, the nature and
extent of any benefit accrued or intended to accrue to that person, or anyone else,
the prevalence of that specified offence and the nature and extent of any harm caused
to the community by recent occurrences of that specified offence. Such information
must be admissible in the usual way.
Section 27 allows the prosecutor to take active steps that may result in a more se-
vere sentence as he may invite the court to conclude that the specified offence is an
organised crime which may attract an enhanced sentence: R v Chong Chi Hung [1994]
2 HKCLR 218. As to the disclosure of pre-sentence reports to the prosecution, see
§5–30, below.
Observations similar to those made by Lord Bingham CJ in Att-Gen’s Reference (No 7
of 1997) (R v Fearon) [1998] 1 Cr App R (S) 268, CA, were made by Lord Woolf CJ in
R v Webb; Att-Gen’s Reference (No 52 of 2003) (The Times, 12 December 2003), CA. His
Lordship said that it was part of the duty of prosecuting counsel to draw to the judge’s
attention before sentence was passed any relevant guideline cases and to have copies
available for the judge to look at if he wished to do so. If the judge was unaware of the
authorities or needed reminding of them, he should take advantage of that offer so
that he could have the guidelines well in mind when he came to pass sentence. The
judge must understand that that was the duty of counsel. It would be quite wrong in
those circumstances to suggest that counsel should not do his duty in the way indi-
cated. It was easy enough for the judge to say “thank you for the offer of assistance but
it is not required”. It did not benefit the administration of criminal justice if judges
were not as familiar with the guidelines as they should be, and in consequence im-
posed inappropriate sentences.
N. Pre-sentence Reports
A “pre-sentence report” can provide valuable background information to the court 5–30
before sentence: Re Stonham [1977-1979] HKC 287. It can also help in determining the
length of the sentence, particularly with a first offender: HKSAR v Hui Kam [2000] 3
HKLRD 211, 215. if A report should only be sent for if there is a real possibility that, if
favourable, it will be acted upon: HKSAR v Pak Wan Kam [2002] 2 HKLRD 223. If im-
prisonment is inevitable, whatever the report might say, a report should not normally
be ordered, as it will “serve no real purpose and impose an unnecessary burden on
the probation service”: R v Wu Man Hon [1993] 2 HKC 267. In HKSAR v Adam William
Townsend (HCMA 141/2014, [2014] HKEC 1966), after it was submitted that, instead
of imprisoning the defendant, the magistrate should have called for a community ser-
vice report, the court held that the offence (indecent assault) was “simply too serious
to warrant such a course”.
453
The report is not normally read aloud in open court, but should be presented to
the court before counsel speaks in mitigation, so that he may refer to any points in the
report and if necessary examine the witness presenting the report: R v Kirkham [1968]
Crim LR 210. Since the prosecution is party to the sentencing process, it can only dis-
charge its function if supplied with a copy of pre-sentence reports.
A remand in custody should not be made before sentence unless it is very much on
the cards that some form of custodial sentence is to be imposed, particularly in the case
of someone of good character. If a report is called for, then a defendant should usually
be placed on bail: Yan Kai Yip v HKSAR (HCMA 95/2005; [2005] HKEC 1049), HKSAR v
Wong Lok Fu (HCMA 1063/2006, [2007] HKEC 561). If, however, psychiatric reports are
required, a period of observation inside the psychiatric facility may be necessary: HKSAR
v Tse Shek Fai (HCMA 560/2006, [2006] HKEC 1673).
O. Mitigation – Procedure
5–31 After the defendant has been convicted, he will normally, by counsel, bring to the atten-
tion of the court matters that are relevant in mitigation of sentence: HKSAR v Chan Wai
Kong (HCMA 1057/2000, 2 February 2001). If required, counsel may have to substantiate
matters upon which reliance is placed: R v Chan Leong [1995] 2 HKCLR 219, [1995] 3
HKC 108. After all, an assertion of fact by counsel is not evidence: R v Cheung Hong-Chung
[1995] 3 HKC 209. At the same time, it is well established that “where mitigating factors
are provided to the court which are both plausible and uncontradicted, the judge should
proceed to sentence on the mitigation”: HKSAR v Cheung To Ming (CACC 406/2005,
[2006] HKEC 294). In HKSAR v Ngai Ho Ting [2013] 4 HKC 547, it was held that, in situ-
ations where the mitigation is not inherently incredible, the court should notify counsel if
it is not prepared to accept it, but if the point being made is not on its face a credible one
or is quite inconsistent with material before the court, counsel should recognize this and
tell the court that unless the point is agreed by the prosecutor and accepted by the court
from the Bar table, evidence will be called to support it.
When mitigating, counsel must adhere to “the principle of relevance in matters af-
fecting sentence”: Chung Shing Garments Co Ltd v R [1963] HKLR 940.
If necessary, counsel should be prepared to call witnesses to support the mitigation
advanced, as this “is a step that can in appropriate cases breathe life into contentions,
if well-founded, that there is something about a case or about the circumstances in
which an accused came to commit the offence”: HKSAR v Yeung Kwun Kuen [2014] 1
HKC 463, per Stock VP.
Any application to hear mitigation in private made by counsel or solicitor should it-
self be heard in private; having listened to the application in private, the court should
then announce its decision in public and proceed to hear the mitigation: R v Ealing JJ,
Ex p Weafer (1981) 3 Cr App R (S) 296, DC. The power to exclude the public during
mitigation should be exercised only when strictly necessary on the ground that pro-
ceeding in open court would frustrate or render impracticable the administration of
justice: R v Reigate JJ, Ex p Argus Newspapers (1983) 5 Cr App R (S) 181, DC: see also R
v Chan Kwok Hung [1996] 4 HKC 559.
Although it is proper for documents relating to sentence to be put before the court
without being read aloud, counsel need to be fully informed and given the oppor-
tunity of dealing with them.
Once the court, having considered the mitigation in private, resumes in public for
the pronouncement of sentence, the judge need say no more than that there are “spe-
cial circumstances on the papers which (justify) a lenient sentence”: HKSAR v Tse Tak
Wah [1998] 1 HKLRD 92.
P. Adjournments after Conviction and before Sentence

5–32 The courts have jurisdiction at common law to postpone the passing of a sentence
or part thereof. Although it is generally desirable to deal with all matters relating to
sentence on the same occasion, it may occasionally be necessary to pass the substan-
tive sentence at once and postpone what has to be done in addition (eg an order for
disqualification) rather than postpone the whole sentence until all the material is
available: R v Annesley 62 (1976) Cr App R 113, CA.
454
Raising expectations of non-custodial sentence
When a judge purposely postpones sentence so that an alternative to prison can be 5–33
examined and that alternative is found to be a satisfactory one in all respects, the court
ought to adopt the alternative. A feeling of injustice is otherwise aroused: R v Gillam
(1980) 2 Cr App R (S) 267, CA; HKSAR v Lai Yip Sing [2001] 2 HKLRD 601.
If a substantial term of imprisonment will inevitably be imposed, probation reports
should not be called for unless there are exceptional circumstances: R v Wu Man Han
[1993] 2 HKC 267. And in Att-Gen v Kwok Yun Hung [1995] 2 HKCLR 198, the Court
of Appeal said it might have aroused false hopes in the accused when the trial judge
sent for probation reports after the accused was convicted of conspiracy to rob, an
offence of such gravity it should have attracted an 18-year starting point for sentence.
The principle in Gillam has no application if the circumstances in which the case
was adjourned were such that nobody present in court could have had an expectation
that there would be a non-custodial penalty even if the reports were favourable: HKSAR
v Lo Shun Kwong, Alexander [1999] 1 HKC 134; R v Horton and Alexander (1985) 7 Cr
App R (S) 299, CA. The question is whether the circumstances created an expectation
of a non-custodial penalty, which it would be unjust to disappoint: R v Norton and
Claxton (1989) 11 Cr App R (S) 143, CA.
Section 109A of the Criminal Procedure Ordinance (Cap 221) requires the court
to adjourn sentence for pre-sentencing reports before passing sentence on a person
aged between 16 years and 20, inclusive, although this has been realistically construed
as not being mandatory if the defendant will go to prison no matter what the reports
reveal: Secretary for Justice v Wong Chi Fung [2018] 2 HKC 50 [87]-[90], (CFA).
Section 54A of the Dangerous Drugs Ordinance (Cap 134) also requires the court
to postpone sentence to consider reports if the accused is convicted of either unlawful
possession of dangerous drugs contrary to section 8, or unlawful possession of ap-
paratus fit and intended for the smoking, inhalation, ingestion or injection of a dan-
gerous drug, contrary to section 36. This is a mandatory requirement: Att-Gen v Chan
Ching Ho [1994] 2 HKC 457.
Purposes of adjournment
It is an abuse of the power of adjournment to exercise it solely so as to wait for the 5–34
offender to attain a particular age before the attainment of which a particular form
of sentence could not be imposed: Arthur v Stringer (1987) 84 Cr App R 361, DC. If
a statute provides that a person of a particular age who is convicted of an offence is
liable to a particular penalty, the date of conviction is generally to be taken to be the
date of the finding of guilt or plea of guilty, not the date sentence is passed, if dif-
ferent: R v Danga [1992] QB 476; CA: see also HKSAR v Law Ka Kit [2003] 2 HKC 178.
When a defendant faces two separate sentencing hearings, it is preferable to ad-
journ to allow for consolidation: R v Savage (No 4) [1997] HKC 775. If different judges
are assigned to hear different aspects of the same case problems may arise and the
better course is for a judge dealing with those pleading guilty to postpone sentencing
until after the trial of those pleading guilty: HKSAR v Lam Chi Keung (CACC 496/1997,
[1998] HKEC 996): see also R v Weekes (1982) 74 Cr App R 161, where it was said that
if a co-accused is to give evidence for the prosecution or co-accused, it is better policy
to sentence the accused at the same time and by the same court, if possible; applied in
R v Ma Sai Chuen [1984] HKC 443 and R v Chan Kwok Hung (CACC 67/1996, [1996]
HKLY 515), CA.
In R v Chan Wai Keung [1995] 1 HKCLR 123, PC, a postponement of sentence was
approved so that the accused could testify for the prosecution in an unrelated trial.
Where an accused intends to testify for the prosecution prior to an appeal, the
appellate court is in the same position as the trial court and the case should be ad-
journed until after evidence is given: R v Ng Hon Kit [1991] 1 HKLR 564.
However, if a postponement of sentence seems long or indeterminate, the court
should sentence the accused first and any discount to be given for assistance to the
authorities can be considered later, either on appeal, or by the executive: R v Wong
Kam Chiu (HCMA 427/1993, [1993] HKLY 436): see also HKSAR v Yeung Kwai Kuen
[2002] 3 HKLRD 91.
455
Q. Imposing Sentence: Sentencing Guidelines
5–35 The sentence of the court is pronounced orally by the presiding judge, normally in
the presence of the defendant. The duty of the court is “to sentence the defendant on
the real facts of the case”: Secretary for Justice v Chan Yiu Tung, Anthony [2018] 1 HKC
434 [58].
Where the defendant has been convicted on more than one count of an indict-
ment, or on more than one indictment, a separate sentence should be passed in re-
spect of each count on which he has been convicted; a sentence should not be passed
generally on the indictment as a whole: see Att-Gen v Wong Sek Shing [1989] 1 HKLR
192, Att-Gen v Yan Chun Fong [1993] 1 HKCLR 42, R v Chan Kui Sheung [1996] 3 HKC
279 and Re Hastings (1958) 42 Cr App R 132, DC.
The clarification of a doubt or ambiguity in respect of a sentence should be done in
open court; only thus will all concerned hear the final decision of the judge himself in
his own terms and only thus would a shorthand note be available: R v Dowling (1989)
88 Cr App R 88, CA. As to making a sentence consecutive to a sentence currently
being served, see §5–76, below.
The courts make a real effort to achieve parity of sentencing between offenders con-
victed of like offences. When this does not happen, it can cause grievances among de-
fendants, as well as concern in the community. To promote consistent sentencing, the
Court of Appeal has recognised its role in promulgating sentencing guidelines for par-
ticular offences: Chan Chi Ming v R [1979] HKLR 491. If there is consistency, it helps to
eliminate the notion of “judicial lottery”, in being sentenced by one court rather than
another: R v Ng Fung King [1993] 2 HKCLR 219. In HKSAR v Godson Ugochukwu Okoro
[2019] 2 HKLRD 451, the Court of Appeal rejected a submission that the sentencing
guidelines for drug trafficking were unconstitutional (it having been argued that they
were arbitrary and thus contrary to the Hong Kong Bill of Rights Ordinance (Cap
383), Article 5(1), and the Basic Law, Artice 28), and it pointed out, firstly, that they
were designed to ensure consistent and appropriate levels of punishment, secondly,
that they were neither fixed nor compulsory, and, thirdly, that it was always open to a
court to depart from them for good reason.
R. Obligation to Give Reasons

5–36 In R v Sheppard (2002) 162 CCC (3d) 298 (319), Binnie J said that “the delivery
of reasoned decisions is inherent in the judge’s role”. However, where reasons for a
particular decision are required, “how much needs to be said is as long as a piece of
string: in other words, sufficient for the particular purpose, which means that it all
depends on the circumstances”: HKSAR v Okafor [2012] 1 HKC 427. A “broad brush”
approach to the provision of reasons is not acceptable, and “transparency in the sen-
tencing process and fairness to the parties require that a judge proceed through
each of the steps required by legal principle in order to arrive at an appropriate sen-
tence”: HKSAR v Wong Yuen Fat [2017] 4 HKLRD 59 [40]. If the court decides not to
enhance a sentence in circumstances where enhancement is usual, reasons should be
given: HKSAR v Londono Montealegre [2017] 1 HKLRD 450.
5–37 There is a statutory obligation to give reasons for imposing a particular sentence
only in the District Court. Section 80 of the District Court Ordinance (Cap 336)
provides:
(1) The verdict and any sentence shall be delivered orally and recorded in writing at
the time of that delivery.
(2) The reasons for the verdict must be delivered—
(a) together with the verdict; and
(b) either orally or in writing.
(3) The reasons for any sentence must be delivered—
(a) together with the sentence; and
(b) orally.
There is no similar statutory control over either the Magistrates Court or the Court of
First Instance. Reasons, however, are invariably given in criminal cases: HKSAR v Li Chi
Shing (HCMA 663/1999, [2000] HKLRD (Yrbk) 257). In the Court of First Instance the
456
accused is given reasons for sentence. Such a duty is implied: Oriental Daily Publisher Ltd v
Commissioner for TELA (No 2) [1998] 2 HKLRD 857: see also Eastern Express Publisher Ltd v
Obscene Articles Tribunal [1995] 2 HKLR 290. There is also a duty on the Court of Appeal to
provide reasons: Au Pui Kuen v Attorney-General [1979] HKLR 16.
In the Magistrates Court, reasons for sentence tend to be brief. An accused needs
to know why he is receiving a particular sentence: R v Tam Wing Lung [1988] 2 HKLR
44. In the event of an appeal by either party, the magistrate has to provide written
reasons for sentence. Those reasons should be the same as those given after convic-
tion without the benefit of hindsight: R v Wong Shing Fai [1991] 1 HKLR 372, HC. In
a difficult case, sentence should be adjourned and detailed reasons prepared: HKSAR
v Tam Say Seng [2000] 3 HKC 236.
Duty to warn of unexpected sentence

There is a general duty on the court which intends to impose a sentence or order 5–38
which has not been in counsel’s mind when he mitigates, to indicate to counsel what
he intends to do and invite counsel to make submissions on the matter: HKSAR v Chu
Hoi Shuen (HCMA 700/2016, [2017] HKEC 562); R v Scott (Stephen Anthony) (1989) 11
Cr App R (S) 249; R v Morgan (Ron Robert) (1987) 9 Cr App R (S) 201. There is no gen-
eral obligation on a judge to warn counsel that he proposes to impose a custodial sen-
tence. When a discretionary life sentence is a possibility, the court should alert counsel
if it is considering this option: R v Pang Chun Wai [1994] 1 HKCLR 137.
S. Commencement of Sentence
The sentence commences usually on the date it is passed; R v Grimsby and Cleethorpes 5–39
Justices, Ex p Walters (1996) 161 JP 25. However, the court may direct the sentence
to begin at the expiration of some other period of custody to which the offender is
already subject or to which he is sentenced at the same time. There is, however, no
power in the court to order the ante-dating of a sentence to the time of arrest: Fan Ah
Yuk v R [1961] HKLR 665.
Criminal Procedure Ordinance (Cap 221), s 68
68.—Where the court sentences any person to undergo a term of imprisonment for 5–40
an offence, and such person is already undergoing, or is at the same time of the court
sentenced to undergo, imprisonment for another offence, it shall be lawful for the
court to direct that such imprisonment shall commence at any time during or at the
expiration of the term of imprisonment which such person is then undergoing or has
been so previously sentenced to undergo, as aforesaid.
The District Court, under s 82 of the District Course Ordinance (Cap 336), and
the Magistrates’ Court, under s 57 of the Magistrates Ordinance (Cap 227), have the
same power.
A sentence cannot be backdated, to an earlier time: Att-Gen v Wan Man Kei [1992]
2 HKC 52.
T. Alteration of Sentence
A magistrate has the power to reconsider his verdict and/or the sentence passed 5–41
under the Magistrates Ordinance (Cap 227) s 104. Either on his own initiative or on
the application of either party, he may, up to 14 days after his initial decision, review
that decision and correct any mistake.
Legislation
Magistrates Ordinance (Cap 227), s 104

Review of decision
104.—(1) Within 14 clear days after the determination in any manner by a magistrate 5–42
of any matter which he has power to determine in a summary way it shall be lawful for
either party thereto to apply to the magistrate to review his decision in the matter.
457
(2) An application may be made whether by the party himself or by his counsel, and
shall be made in writing to the magistrates’ clerk.
(3) If either party to the said matter is in the custody of the Commissioner of
Correctional Services, the magistrate shall, unless he dismisses the application forthwith,
inform the Commissioner of Correctional Services in writing that an application for a
review has been made, and thereafter the Commissioner of Correctional Services shall
produce the said party whenever so required in writing by a magistrate for the purposes
of the review or of the application therefor.
(4) It shall be lawful for the magistrate to grant the application for a review at any time
provided that the application for the review shall have been duly made in accordance
with the provisions of subsections (1) and (2).
(4A) A magistrate shall not reject an application for a review without giving the appli-
cant or his counsel an opportunity to make representations to him in open court.
(5) It shall also be lawful for a magistrate on his own initiative, within 14 clear days
after the determination in any manner of any matter which he has power to determine
in a summary way, to re-open the case, and thereafter, whether within the said period of
14 clear days or after its expiration, to review his decision in the matter.
(6) If the magistrate on his own initiative reviews his decision or grants an application
for a review, it shall be lawful for him upon the review to re-open and re-hear the case
wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous
decision.
(7) If the magistrate upon the review decides that the case is one which should be re-
opened and wholly re-heard and if he is of the opinion that in the interests of justice the
case should be re-heard by another magistrate, it shall be lawful for some other magis-
trate to re-hear and determine the case accordingly.
(8) For the purpose of the review a magistrate shall have all the powers, as to securing
the attendance of the parties and witnesses and otherwise, that he would have if the
matter were brought before him as an original complaint or information.
(9) No application for a review shall be granted and no exercise by a magistrate shall
be made of the power conferred on him by subsection (5) subsequent to the commence-
ment of proceedings by either party with a view to questioning the decision of the magis-
trate by way of appeal, mandamus or certiorari, unless such proceedings shall have been
abandoned.
(10) For the purpose of determining the time within which an appeal whether by way
of case stated under section 105 or under section 113 may be lodged, the determination
of a case by way of review under this section or the refusal to grant a review shall, in the
event of such determination or refusal and notwithstanding anything contained in the
sections aforesaid, or in section 114 be the date as from which the respective periods for
lodging an appeal shall run but nothing in this Ordinance shall authorise an appeal,
whether by way of case stated or otherwise, from the refusal of a magistrate to grant a
review.
Notes on alteration of sentence

Scope of power
5–43 The purpose of s 104 is to provide a speedy and simple means of correcting mistakes
without incurring the fine and expense of an appeal: Poon Chau Cheung v Secretary for
Justice (2000) 3 HKCFAR 121, 129; Yeung Siu Keung v HKSAR (2006) 9 HKCFAR 144,
[3]; HKSAR v Chan Pak Hoe Pablo [2012] 4 HKC 536.
A magistrate has the power in the review to re-open and re-hear the case wholly or
in part, and to take fresh evidence, and to reverse, vary or confirm his previous deci-
sion. Section 104 provides flexibility in both phases of the two-stage process, namely,
the decision whether to grant or dismiss the application for review; and the decision
as to what should be done upon the review. Thus, a review may be granted at any time
upon application duly made by one of the parties or undertaken by the magistrate
on his own initiative (s 104(4) and (5)): HKSAR v Chan Pak Hoe Pablo, [2012] 4 HKC
536, [33]. In Poon Chau-Cheong v Secretary for Justice (2000) 3 HKCFAR 121, the Court
of Final Appeal held that s 104 did not limit the grounds on which a review might be
granted, and its formula to “reverse, vary or confirm his previous decision” was a mani-
festly wide one. Specifically, under s 104(8), a magistrate had all the powers on review
that he would have had if the matter were brought before him as original information.
458
Thus, to set aside an acquittal and amend the charge upon review under s 27 would
be to “vary” the previous decision, and an application for that purpose fell prima facie
within s 104 (see p 129 I–J).
Where there is a pending appeal against one part of the magistrate’s decision,
s 109(4) does not preclude a review by that magistrate of another part of his decision
in the same case: HKSAR v Chan Pak Hoe Pablo [2012] 4 HKC 536, paras 7, 35-37.
Grounds for alteration

The usual reason for altering a sentence is that further information relevant to the 5–44
case has become available: R v Crozier (1990-91) 12 Cr App R (S) 206, CA, or the court
has overlooked some statutory provision limiting the exercise of its powers, or the sen-
tence is found to take effect in a manner other than that expected by the court: R v
Davies [1998] 1 Cr App R (S) 252, CA.
The exercise of the power was approved in principle in R v Hart 5 (1983) Cr
App R (S) 25 where it was established that the offender had caused false informa-
tion, which was critical to the sentence imposed, to be put before the court. See
also R v McLean (1988) 10 Cr App R (S) 18. The judge should not decide that false
information has been put before the court without a proper inquiry and allowing
the offender to give evidence: see R v Tout 15 (1994) Cr App R (S) 30, CA. It is
wrong to exercise the power to substitute a more severe sentence than that ori-
ginally imposed simply on the basis that on reflection the original sentence seems
inadequate: R v Nodjoumi (1985) 7 Cr App R (S) 183, CA and R v Evans (1992)
13 Cr App R (S) 377, CA. Misbehaviour in the dock immediately after sentence
is imposed, by shouting abuse or otherwise, is not a ground for increasing a sen-
tence: the matter should be dealt with if necessary as a contempt of court: R v Powell
(1985) 7 Cr App R (S) 247, CA.
Procedure
A magistrate must hold a hearing in open court before refusing an application to re- 5–45
view his sentence. Variation of sentence should be in the presence of the defendant unless
either expressly or by implication (eg by absconding) he has waived the right to be pre-
sent: R v May (1981) 3 Cr App R (S) 165, CA; R v Cleere (1985) 5 Cr App R (S) 465, CA;
R v McLean (1988) 10 Cr App R (S) 18; and R v Hussain [2000] 1 Cr App R (S) 181, CA.
U. Committal for Sentence

There is no power in Hong Kong to remit a person to a higher court where a judge 5–46
thinks a higher penalty than he can impose is warranted. The only power to commit
for sentence is after an accused has pleaded guilty to an offence for which he would
have been committed for trial had he not pleaded guilty.
Legislation
Magistrates Ordinance (Cap 227), s 81B

Committal for sentence on a plea of guilty
81B.—(1) Where, by section 80C(4)(a) or section 82(1), the magistrate is required to 5–47
ascertain whether the accused desires to plead guilty to the charge, he shall inform the
accused that the court proposes to commit him for trial; but that the accused may, if he
so desires now, plead guilty to the charge and, if he pleads guilty, he will be committed
to the Court of First Instance for sentence.
(2) If the accused then pleads guilty the magistrate, before he accepts the plea
shall:
(a) where the accused pleads guilty in proceedings under section 80C, require
the prosecutor to outline to the accused, to the satisfaction of the magistrate,
the alleged facts upon which the charge is based;
(b) explain to the accused the offence with which he is charged and the ingredi-
ents which at law constitute such offence; and
459
(c) record any statement made by the accused in pleading guilty to the charge
and that the offence and the ingredients which at law constitute the offence
were explained to the accused,
and, if the magistrate is satisfied that the plea is made voluntarily and with an under-
standing of the nature of the charge, he shall commit the accused for sentence.
(3) No objection shall be taken to any information or complaint to which the accused
has pleaded guilty, and the accused shall not afterwards be allowed to withdraw the plea
except with the leave of a judge of the Court of First Instance.
(4) Where a judge grants leave to withdraw a plea of guilty in accordance with the
provisions of subsection (3) he may, at the same time, exercise his powers under section
24A(1) of the Criminal Procedure Ordinance (Cap 221) to direct or consent to the pre-
ferment of an indictment charging the accused with the offence in respect of which the
plea has been withdrawn or any related offence.
(5) An accused who is committed for sentence shall as soon as practicable be brought
before the Court of First Instance for sentence, and any judge of that Court shall have
the same powers of sentencing or otherwise dealing with the accused, and of finally dis-
posing of the charge and of all incidental matters, as he would have had if the accused
on arraignment at any criminal sittings of the Court of First Instance had pleaded guilty
to the offence charged on an indictment duly presented.
(6) The magistrate committing an accused for sentence shall have the like powers to
commit the accused to prison or to admit him to bail as in the case of an accused com-
mitted for trial and the accused shall have the like rights and obligations.
V. Remitting Juveniles
Legislation
Juvenile Offenders Ordinance (Cap 226), s 3F

Power of other courts to remit juvenile offenders to juvenile courts
5–48 3F.—(1) If a child or young person is found guilty of an offence other than homicide
by any court other than a juvenile court, the court shall, unless satisfied that it would be
undesirable to do so, remit the case to a juvenile court; and where any such case is so
remitted the offender shall be brought before the juvenile court accordingly, and that
court may deal with him in any way in which it might have dealt with him if he had been
tried and found guilty by that court.
(2) Where any case is so remitted—
(a) the offender shall have the same right of appeal against any order of
the juvenile court to which the case is remitted as if he had been found
guilty by that court, but shall have no right of appeal against the order of
remission; and
(b) any appeal against the finding of guilt shall be made in accordance with the
provisions for appeal against the finding of the remitting court and the time
within which such appeal shall be made shall run from the date of the final
order of the juvenile court to which the case was remitted.
(3) A court by which an order remitting a case to a juvenile court is made under this
section may give such directions as appear to be necessary for the custody of the of-
fender or for his release on bail until he can be brought before the juvenile court, and
shall cause to be transmitted to the juvenile court a certificate setting out the nature of
the offence and stating that the offender has been found guilty thereof, and that the
case has been remitted for the purpose of being dealt with under this section.
Thus a child or young person convicted by a court other than a juvenile court of
an offence other than homicide, will be remitted to the juvenile court for sentencing,
unless the court is satisfied it would not be desirable to do so. Although a court has
a wide discretion, it should provide adequate reasons for not remitting a case to the
juvenile court: HKSAR v Chu Ka Yin [2017] 3 HKLRD 1046.
It was held in R v Ip Wai Hung [1982] HKC 136, that the provision of a certificate
under subsection (3) is mandatory. However, magistrates have separate powers to deal
with offenders under the age of 16.
460
Sect. II] Sentences of Imprisonment § 5–52
Supplementary powers over persons under 16
96.—Where a person apparently under the age of 16 years is convicted of any offence, 5–49
the magistrate may, in addition to or in lieu of any other punishment for such offence,
order the offender:
(a) to be discharged after due admonition; or
(b) to be delivered to his parent, guardian or nearest adult relative or, if the offender is
an apprentice or servant, to his master or mistress or, if the offender is a pupil,
to the person in charge of the school at which the offender is attending, on such
parent, guardian, relative, master, mistress or person in charge of a school exe-
cuting a bond, with or without sureties, that he will be responsible for the good
behaviour and also, if the magistrate thinks it necessary, for the proper educa-
tion of the offender for any period not exceeding 12 months.
Grounds for refraining from exercise of power to remit

Possible reasons for not exercising the power to remit would include the fact that 5–50
the judge who presides over the trial would be better informed as to the facts and
circumstances of the matter, or that the exercise of the power would create a risk of
disparity between co-defendants sentenced on different occasions by different courts,
leading to delay or unnecessary duplication of proceedings, or confuse the position in
the event of an appeal; it may be desirable to remit where the trial judge will be unable
to sit and a report is to be obtained.
II. SENTENCES OF IMPRISONMENT
A. Age
Restriction on imposing imprisonment on persons under 21
Section 109A of the Criminal Procedure Ordinance (Cap 221) requires: 5–51
(1) No court shall sentence a person of or over 16 and under 21 years of age to im-
prisonment unless the court is of opinion that no other method of dealing with
such person is appropriate; and for the purpose of determining whether any
other method of dealing with any such person is appropriate the court shall
obtain and consider information about the circumstances, and shall take into
account any information before the court which is relevant to the character of
such person and his physical and mental condition.
which is declared to be an excepted offence by the Third Schedule.
As to the determination of age, see section 106A, ibid:
(2) Where the age of any person at any time is material for the purposes of any
provision in this Ordinance or any other Ordinance regulating the powers of
a court in relation to offenders, his age at the material time shall be deemed
to be or to have been that which appears to the court, after considering any
available evidence, to be or to have been his age at that time.
Juvenile Offenders Ordinance (Cap 226), s 11
Restrictions on punishment of children and young persons
(1) No child shall be sentenced to imprisonment or committed to prison in default of 5–52
payment of a fine, damages, or costs.
(2) No young person shall be sentenced to imprisonment if he can be suitably dealt
with in any other way.
(3) A young person sentenced to imprisonment shall not be allowed to associate with
adult prisoners.
A ‘child’ is a person under 14 years and a ‘young person’ is aged 14 and under 16.
Where a court imposes a sentence on the basis of an assumption that the offender
is of a particular age, the sentence will not be unlawful if it is subsequently discovered
461
that he is of a different age: see R v Brown 11 Cr App R (S) 263, CA. See also section
19 of the Juvenile Offenders Ordinance below.
Order not to be invalidated by subsequent proof of age
5–53 19.—Where a person, whether charged with an offence or not, is brought before any
court and it appears to the court, after considering any available evidence as to his age,
that he is a child or young person, an order or judgment of the court shall not be invali-
dated by any subsequent proof that the age of that person has not been correctly stated
to or presumed or declared by the court, and the age presumed or declared by the court
to be the age of the person so brought before it shall, for the purposes of this Ordinance,
be deemed to be the true age of that person, and where it appears to the court, after
considering any available evidence as to his age, that the person so brought before it is
of the age of 16 years or upwards, that person shall for the purposes of this Ordinance
be deemed not to be a child or young person.
B. Maximum Sentences: Penalty Provisions

(1) Legislation
(a) General
Criminal Procedure Ordinance (Cap 221), 101F
Penalties prescribed to be deemed maximum penalties

5–54 101F.—Where, in any Ordinance a penalty is prescribed for an offence under that
Ordinance, such provision shall imply:
(a) that such offence shall be punishable upon conviction by a penalty not ex-
ceeding the penalty prescribed; and
(b) if the amount of the fine is unspecified, that such offence shall, without prej-
udice to any law against excessive or unreasonable fines or assessments, be
punishable by a fine of any amount.
Criminal Procedure Ordinance (Cap 221), 101G

Statement of penalty at end of section
5–55 101G.—Where in any Ordinance a penalty is set out at the foot of any section or part
thereof the same shall mean that any contravention of that section or part shall be an
offence under such Ordinance punishable upon conviction by a penalty not exceeding
the penalty so set out.
(b) Liability to imprisonment on conviction on indictment

Criminal Procedure Ordinance (Cap 221), 101I
Punishment of indictable offences

5–56 101I.—(1) Subject to subsection (2) where a person is convicted of an offence which is
an indictable offence and for which no penalty is otherwise provided by any Ordinance,
he shall be liable to imprisonment for seven years and a fine.
(2) Where a person is convicted of incitement to commit an offence for which a max-
imum penalty is provided by any Ordinance, and no penalty is otherwise provided by
any Ordinance for such conspiracy or incitement, he shall be liable to be sentenced to
that maximum penalty.
(c) General limit on magistrates’ court’s power to impose imprisonment

5–57 Magistrates are generally limited in their sentencing powers by the maximum pen-
alty set down in each particular summary offence. When dealing with indictable of-
fences transferred to them, the Magistrates Ordinance imposes restrictions on their
sentencing powers. For permanent magistrates the maximum for one offence is
two years, but if consecutive sentences are imposed, the maximum is increased to a
462
possible three years’ imprisonment. A special magistrate is restricted to six months’
imprisonment, increased to one year if consecutive sentences are imposed. See below
for statutory powers and some exceptions to the general rule.
Magistrates Ordinance (Cap 227), s 92A
Summary disposal of transferred cases
92A.—Whenever any proceedings are transferred to be dealt with summarily by a 5–58
magistrate pursuant to section 65F of the Criminal Procedure Ordinance (Cap 221) or
section 77A of the District Court Ordinance (Cap 336), notwithstanding anything in
section 91 or 92, a permanent magistrate shall deal with the case and may convict the
accused summarily and on conviction sentence him to imprisonment for 2 years and to
a fine of $100,000:
Provided that nothing in this section shall affect any greater or lesser punishment spe-
cifically provided for in any other Ordinance.
For examples of legislation providing greater punishment powers to magistrates,
see the Firearms and Ammunition Ordinance (Cap 238), section 20(2), under
which a sentence of up to seven years’ is permitted, and section 8 of the Dangerous
Drugs Ordinance (Cap 134), which allows a sentence of three years to be imposed.
Indictable offences which may be dealt with by permanent magistrate summarily
92.—Whenever any person is accused before a permanent magistrate of any indict- 5–59
able offence except an offence specified in Part I of the Second Schedule, the magis-
trate, instead of committing the accused for trial before the court, may deal with the
case and convict the accused summarily, and on conviction may sentence the accused
to imprisonment for 2 years and to a fine of $100,000: (See Form 93). Provided that
nothing in this section shall affect any greater or less punishment specifically provided
for in any other Ordinance.
(d) Special Magistrates powers are more restricted

Indictable offences which may be dealt with by special magistrate summarily

91.—Whenever any person is accused before a special magistrate of any indictable 5–60
offence except an offence specified in the Second Schedule, the magistrate, instead of
committing the accused for trial before the court, may deal with the case and convict the
accused summarily, and on conviction may sentence the accused to imprisonment for
6 months and to a fine of $50,000: (See Form 93) Provided that nothing in this section
shall affect the provisions of section 94 or any lesser punishment specifically provided in
any other Ordinance.
Special powers for summary trial of certain indictable offences
94.—Where any person is accused of stealing from the person or of any offence 5–61
within the meaning of either of sections 42 and 43 of the Offences against the Person
Ordinance (Cap 212) it shall be lawful for a special magistrate to hear the case and con-
vict the accused summarily and to sentence him to imprisonment for 1 year or to commit
the accused for trial before the court.
Consecutive or partly consecutive sentences of imprisonment
57.—Where a term of imprisonment is imposed by a magistrate, either in the first in- 5–62
stance or in respect of the non-payment of any sum of money adjudged to be paid by a
conviction or order, the magistrate may order that the said term shall commence at any
time during or at the expiration, in whatever manner, of any other term of imprison-
ment which has previously been imposed by any court:
Provided that where 2 or more terms of imprisonment imposed by a magistrate are
ordered to run consecutively in whole or in part the aggregate of the said terms of im-
prisonment shall not, in the case of a special magistrate, exceed 12 months and in the
463
case of a permanent magistrate exceed 3 years. Nothing in the foregoing proviso shall
be deemed to affect the provisions of section 44.
Rule as to cumulative sentences for assault
5–63 44.—A special magistrate shall not, by cumulative sentences of imprisonment (other
than for default of finding sureties) to take effect in succession in respect of several as-
saults committed on the same occasion, impose on any person imprisonment for the
whole exceeding 6 months; but nothing in this section shall be deemed to affect the
provisions contained in section 94.
General power to fine
5–64 97.—(1) Where a person is convicted of an offence other than an indictable offence
the magistrate may, if he is not precluded from sentencing the person by the exercise of
some other power (such as the power to make a probation order under section 3 of the
Probation of Offenders Ordinance (Cap 298)), impose a fine in lieu of or in addition
to dealing with the person in any other way in which the magistrate has power to deal
with him, subject however to any enactment requiring the person to be dealt with in a
particular way.
(2) In the exercise of the power under subsection (1) a magistrate shall not impose on
an offender, in default of payment of the fine, any greater term of imprisonment than
that to which the offender would have been liable under the enactment authorising the
imprisonment.
(3) A fine imposed in exercise of the power under subsection (1) shall not—
(a) in the case of a special magistrate, exceed $50,000;
(b) in the case of a permanent magistrate, exceed $100,000,
except where a greater sum is specifically provided for in any other Ordinance.
In the District Court, judges sentencing jurisdiction is limited by statute to seven years.
District Court Ordinance (Cap 336), s 82(2)
Penalties
5–65 82.—(2) Notwithstanding the provisions of any enactment in force at the commence-
ment of this Ordinance and notwithstanding that proceedings have not been taken by
way of indictment, the Court may impose any penalty and make any order provided by
law for or in connection with any offence of which it has cognisance:
Provided that—
(a) no sentence of imprisonment passed by the Court shall exceed 7 years in
respect of one offence and where 2 or more consecutive terms of imprison-
ment are imposed by the Court under subsection (1), the aggregate of the
said terms of imprisonment shall not exceed 7 years; and
(b) any term of imprisonment imposed in default of payment of a fine shall not
exceed 1 year.
Therefore the aggregate of any sentences consecutive in whole or in part must also
not exceed seven years. The sentencing jurisdiction of judges of the Court of First
Instance is limited only by the maximum penalty set for each offence. The maximum
sentence is life imprisonment.
(e) Conspiracy and attempt

5–66 In relation to conspiracy, see the Crimes Ordinance section 159A (§36–1, below); in
relation to attempt, see ibid, section 159G (§36–83, below).
(2) Notes on maximum sentence

Common law offences
5–67 For an indictable common law offence for which no penalty is otherwise pre-
scribed, the maximum sentence is seven years’ imprisonment and a fine: see Criminal
Procedure Ordinance (Cap 221), section 101I, §5–49 above.
464
Most serious example of the offence
In HKSAR v A male known as Boma Amaso [2012] 2 HKLRD 33, a case of money 5–68
laundering, the Court of Appeal said: “The first factor to which any sentencing
court should in this context have regard is the maximum penalty available. It is
not possible to identify the worst case possible and difficult to postulate the worst
category of case. But it is nonetheless helpful to bear the maximum in mind” [35],
per Stock VP.
Realistic sentences are required for serious offences: HKSAR v Chan Kin Chung
[2002] 4 HKC 314. But the maximum sentence provided by law for an offence should
normally be reserved for the most serious examples of the offence: Att-Gen v Cheung
Kai Man, Dominic [1987] HKLR 788; R v Byrne 62 Cr App R 159, CA. Judges should not
use their imaginations to conjure up unlikely worst possible cases. What they should
consider is the worst type of offence which comes before the court and ask themselves
whether the particular case they are dealing with comes within the broad band of
that type. When the maximum sentence is low, the band may be wide: R v Ambler and
Hargreaves [1976] Crim L R 266, CA.
The maximum sentence provides a guide to the courts when sentencing of-
fenders: Att-Gen v Ho Chun Chau [1985] HKC 40. To attract the maximum sen-
tence, the conduct of the accused “should fall at the top end of the range for
this form of disposal”: HKSAR v Yau Wai Hang (CACC 80/2001, [2001] HKEC
942). In HKSAR v Tsang Kwun-wing (CACC 89/2004 [2004] HKEC 1140), the max-
imum sentence for the offence of driving a vehicle without third party insurance of
12 months’ imprisonment was adopted as the starting point for sentence, because
the unlawful deriving persisted for a “considerable time” and posed a “serious
hazard” to road users.
The fact that the court considers that the legislature has set the maximum sentence
for a particular offence too low is not a ground for imposing the maximum sentence
when there are relevant mitigating factors such as a plea of guilty: see R v Carroll 16 Cr
App R (S) 488, CA). The maximum sentence for any offence should be reserved for
the most serious offences of that kind, while any appropriate discount (for example,
for a plea of guilty, the recovery of stolen property or subsequent co-operation with
the police) should be made from a level of sentence which is commensurate with the
seriousness of that offence within the range established by the relevant statute: see
HKSAR v Tin Siu Hung [2006] 1 HKLRD 29 in which the adoption of the maximum
starting point was held to be appropriate; see also HKSAR v Mach Sindy (CACC 198/
2004, [2006] HKEC 339).
See also HKSAR v Lau Wan (HCMA 769/2005, [2006] 1 HKLRD B9).
Cases with substantial mitigation

It will seldom be appropriate to impose the maximum sentence in a case where 5–69
there are substantial mitigating factors: see R v Markus [1974] 3 WLR 645, CA; R v
Cade (1984) 6 Cr App R (S) 28, CA.
Plea of guilty
It will rarely be necessary to impose the maximum sentence on an offender who 5–70
pleads guilty. The usual rule is that a plea of guilty attracts a discount of one third
(see §5–73, below). Rare cases are to be found which are so serious that the customary
discount is withheld: R v Costen (1989) 11 Cr App R (S) 182, CA, R v Cheng Cheuk Man
[1994] 3 HKC 235; R v Chu Kwai Ying (CACC 250/1996, [1997] HKLY 321). Recent
thinking suggests that even in worst possible case scenarios a full discount may still be
appropriate: Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751. If the full discount
is to be withheld, there must exist “exceptional circumstances”: HKSAR v Chiu Chi Wai
(No 2) [2000] 1 HKLRD 804. In HKSAR v Ho Tung Yuen [2011] 5 HKC 586, the Court
of Appeal, per Yeung VP, noted that the interests of society demanded “deterrent sen-
tences against taxi drivers who molest drunken female passengers, irrespective of their
previous good character”.
465
Consecutive maximum terms
5–71 It is not necessarily wrong in principle to impose consecutive maximum sentences,
provided that each individual offence is of the most serious kind that can reasonably
be contemplated, and the normal principles relating to consecutive terms are ob-
served. For examples, see R v Hunter (1979) 1 Cr App R (S) 7, CA; R v Prime (1983) 5
Cr App R (S) 127, CA.
Effect of change in maximum sentence

5–72 Where a statute increases a penalty for an existing offence, or introduces a new
sentencing power, it is the usual (although not invariable) practice to include in the
statute itself or in the commencement order which brings the relevant provision into
force a provision to the effect that the new penalty or sentencing power will apply
only to offences committed on or after the commencement date of the provision
concerned.
Where there is doubt as to whether an offence was committed before or after
the date of an increase in penalty, the solution is to have two counts, appropriately
worded: see R v Cairns [1998] 1 Cr App R (S) 434, CA.
Where the maximum penalty is reduced between the date of offence and the date
of sentence, the reduced maximum will apply: Article 12(2) of the Hong Kong Bill of
Rights Ordinance (Cap 383).
If the level of sentence is increased for the most serious cases, then this has, in
effect, a trickle-down effect: HKSAR v Chan Kwok Fai [2012] 2 HKLRD 25. In R v
Richardson [2007] 2 All ER 601, the English Court of Appeal, per Sir Igor Judge LCJ,
said that there should “be some corresponding increase in sentences below this level
of gravity, continuing down the scale to the cases where there are no aggravating
features at all”.
When the maximum sentence for an offence is increased, the court must still make
some assessment “as to where within the range of seriousness the offence at hand
lies”: HKSAR v Ding Yuk Kwan [2009] 1 HKC 36, per Stock JA. If the offence lacks aggra-
vating factors, an accused may still be sentenced at the lower end of the scale: Secretary
for Justice v Lau Siu Ting [2010] 5 HKLRD 581.
C. Remission of Sentence
5–73 Under rule 69 of the Prison Rules (Cap 234A), a prisoner serving a sentence of over
one month may be granted remission of his jail term. Such remission cannot exceed
one-third of the total of the actual term. Consecutive terms of imprisonment are to be
treated as one term under the rule. Section 67A of the Criminal Procedure Ordinance
(Cap 221) allows a reduction of a sentence of imprisonment to take into account any
period spent in custody prior to sentencing.
When passing sentence, the court must ignore the possibility of remission
earned by good behaviour: R v Ng Kin Ming (CACC 275/1994, [1995] HKLY 396);
Secretary for Justice v Wong Yin Tak (CAAR 9/1999, [2000] HKEC 607). However,
if the court is concerned primarily with reform or mental treatment rather than
punishment, the court may take notice of the effect of remission: R v Turner (1966)
51 Cr App R 72, where the accused was detained in a psychiatric prison and the
doctor advised treatment for three years’ rather than two, so the court sentenced
him to five years’ imprisonment to allow for remission. Such an approach was ap-
proved in passing by the Court of Appeal in R v Huthart [2002] 4 HKC 692: see
also Shum Kwong v R (Cr App 133/1963), as explained in Hui Choi v R [1963]
HKLR 963.
An inmate has no right to remission: R v Too Hung Fong [1991] 1 HKLR 365; the
matter is entirely at the discretion of the Commissioner of Correctional Services, who
will form his view after studying the prisoner for some time: R v Ouless & Ouless (1986)
8 Cr App R (S) 124: see also HKSAR v Yeung Kwai Kuen [2002] 3 HKLRD 91). Whereas
a sentence of imprisonment is made as a punishment for past conduct, “the period
of remission is an executive decision being a reward for future conduct which the
466
accused may or may not earn while in prison”: HKSAR v Kok Chun Wai, Campion [2018]
HKCFI 1148, [62] (HCMA 527/2016, [2018] HKEC 1395).
A prison superintendent can order up to two months’ forfeiture of remission and
the Commissioner up to six months’ forfeiture to punish prisoners for breach of
prison discipline.
Where a court imposes a discretionary life sentence, or an automatic life sentence,
the prisoner cannot in law take advantage of Rule 69. However since 1996 when the
Post-Release Supervision of Prisoners Ordinance (Cap 475) came into effect, certain
categories of prisoner can be released under supervision.
D. Time Served Prior to Imposition of Sentence

(1) Legislation
Criminal Procedure Ordinance (Cap 221), s 67A
Computation of sentences of imprisonment

67A.—(1) The length of any sentence of imprisonment imposed on a person by a 5–74
court shall be treated as reduced by any period during which he was in custody by reason
only of having been committed to custody by an order of a court made in connection
with any proceedings relating to the sentence or the offence for which it was passed, or
with any proceedings from which those proceedings arose, but where the person was, in
respect of the offence for which the sentence of imprisonment was imposed, subject to
an earlier order made under—
(a) section 3 of the Probation of Offenders Ordinance (Cap 298);
(b) section 36 of the Magistrates Ordinance (Cap 227); or
(c) section 109B of this Ordinance,
any such period of custody falling before the earlier order was made shall be disregarded
for the purposes of this section.
(1A) The length of any sentence of imprisonment imposed on a person by a court
shall also be treated as reduced by any period during which he was, immediately prior to
his first appearance in court in connection with any proceeding relating to the offence
for which the sentence of imprisonment was imposed, in custody—
(a) of the police, Customs and Excise Department or Independent Commission
Against Corruption in connection with that offence; or
(b) under Part VII of the Immigration Ordinance (Cap 115) in connection with
that offence.
(2) For the purposes of this section a suspended sentence shall be treated as a sen-
tence of imprisonment when it takes effect under section 109C and as being imposed by
the order under which it takes effect.
(3) No period of custody, other than a period which would have been taken
into account immediately before the commencement of the Criminal Procedure
(Amendment) Ordinance 1983 (46 of 1983) for the purpose of reducing a term of im-
prisonment, shall be taken into account for the like purpose under this section unless
it falls after the commencement of the Criminal Procedure (Amendment) Ordinance
1983 (46 of 1983).
(3A) No period of custody, other than a period which would have been taken into
account immediately before the commencement of the amendment to this section
effected by the Administration of Justice (Miscellaneous Provisions) Ordinance 1995
(13 of 1995) for the purpose of reducing a term of imprisonment, shall be taken into
account for the like purpose under this section unless it falls after that commencement.
(4) Any reference in this or any other Ordinance to the length of any sentence of im-
prisonment shall, unless the context otherwise requires, be construed as a reference to
the sentence pronounced by the court and not the sentence as reduced by this section.
(5) In this section “court” includes the District Court and a magistrate.
Administrative and judicial detention

Section 67A (Cap 221) is concerned with the computation of sentences of impris- 5–75
onment. Whereas section 67A concerns judicial detention, section 67A(1A) covers
administrative detention. If the offender has been in administrative detention for the
467
offence prior to sentence, the court should still impose the appropriate sentence,
and then leave it to the prison authorities to reduce the sentence to reflect the earlier
detention: HKSAR v Muhammad Ali (HCMA 774/2015, 22 March 2016). There may,
however, be unrelated periods of administrative detention, which might not otherwise
be factored in, and when the court is advised of this, it may, at its discretion, and in
fairness to the offender, reduce the sentence to take account of this: HKSAR v Eftakhar
Beg [2015] 5 HKC 427. Likewise, if the interests of justice so require, unrelated periods
of judicial detention concerning offences of which the accused was suspected but not
convicted may be taken into account in determining sentence: HKSAR v Iqbal Zahid
[2018] 2 HKLRD 832.
(2) Notes on time served prior to sentence

Subsequent suspended sentence
5–76 Where an offender has spent a period in custody on remand which is equivalent
to the term of imprisonment which would be appropriate to the offence, so that if
the offender received a sentence of that length he would be immediately released,
the court should not pass a suspended sentence: see R v McCabe (1988) 10 Cr App R
(S) 134, CA; R v Peppard (1990-91) 12 Cr App R (S) 88, CA, and R v Helder (1992) 13
Where the length of the appropriate term of imprisonment is longer than the ef-
fective period spent in custody on remand, the length of the sentence passed should
be reduced by an appropriate amount to reflect the time spent in custody on remand,
as this time will not be deducted from the sentence if it is eventually activated: see R v
Williams (Meirion) (1989) 11 Cr App R (S) 152, CA.
Subsequent community service order

5–77 Where an offender has spent time in custody before he is made subject to a commu-
nity service order, and is later sentenced to custody for the same offence after flouting
the order, the sentence should be reduced to allow for the time spent in custody on
remand before the order was made, which will not be deducted from the sentence: R
v Henderson (1980) 2 Cr App R (S) 266.
Concurrent/consecutive sentences arising out of different

committals
5–78 Where an offender is sentenced to a combination of individual sentences, whether
consecutive or concurrent, time spent in custody in connection with any of the of-
fences is deducted from the aggregate sentence, subject always to the rule that time
could never be counted more than once: R v Governor of Brockhill Prison, Ex p Evans; R
v Governor of Onley Young Offender Institution, Ex p Reid [1997] QB 443, DC.
Offences subsequently taken into consideration

5–79 In R v Towers (1987) 9 Cr App R (S) 333, CA, the appellant spent about 18 days in
custody after being arrested for an offence which was subsequently taken into consid-
eration. It was held that this time was not deductible from the sentence by virtue of
the equivalent English legislation of section 67A, but that it was appropriate, “as an act
of mercy … on the special facts of this case,” to make a reduction of one month in the
term of the sentence imposed.
Life sentences
5–80 Where a court imposes a discretionary life sentence, it is required to specify a min-
imum period to be served, under section 67B of the Criminal Procedure Ordinance
(Cap 221). As regards time spent in custody prior to the imposition of the discre-
tionary life sentence, this is not something with which the court now concerns itself in
light of s 67A of the Criminal Procedure Ordinance (Cap 221).
468
Extradited prisoners
Prisoners who have been detained overseas prior to extradition cannot benefit from 5–81
s 67A in the same way as other inmates who have spent time on remand. However,
a court can take into account any such period when calculating sentence: Att-Gen v
Shamsudin [1987] HKLR 826. If an accused fights extradition, it is at the court’s dis-
cretion whether to give a discount: Secretary for Justice v Sugiyana, Akira (CAAR 4/1996,
[1997] HKEC 285). The court’s discretion will only be overturned on appeal if it can
be shown it was plainly wrong or plainly failed to take into account matters that should
have been considered.
In HKSAR v Cheung Curtis Ka Kim [2018] 1 HKC 419, an offender who resisted
extradition from the United States was only granted a discount of two months in rec-
ognition of this, the reason being that “other defendants should be discouraged from
adopting a similar course” [39], per Macrae JA.
If, however, an accused is wrongly detained abroad he is entitled to have that period
deducted from his final sentence: R v Law Yui Wo [1994] 2 HKCLR 204.
A judge cannot be criticised for not taking account of the potential for remission
for time spent in custody in China prior to return to Hong Kong: HKSAR v Lam Pak
Lok [1997] 3 HKC 650. If the offender had absconded prior to trial, that is a matter
to be considered by the sentencing judge. Like considerations apply if the offender
flees in order to avoid the charges he knows he faces: HKSAR v Lee Kwan Yee [2014] 1
HKC 162.
Time spent in custody in relation to unconnected conviction

Under s 67A of the Criminal Procedure Ordinance (Cap 221), a defendant will 5–82
be given the benefit of all the time he has spent in custody in respect of the previous
conviction, including the time between the dates of the previous convictions and the
dates of quashing of those convictions on appeal: HKSAR v Ho Kwok Ho [2006] 4
HKLRD 365.
On a true interpretation of section 67A of the Criminal Procedure Ordinance
(Cap 221), where a man is arrested on particular charges, for which he is held in
custody, whether police custody or by order of the court, any time he spent in cus-
tody on those charges for that offence must be credited to any sentence passed on
him in relation to those charges, whether or not the proceedings in which he was
originally held in custody, or some subsequent separate proceedings commenced
under a different court number. This is not a matter which must be determined by
reference to the vagaries of the court numbering system but by reference to the facts
involved in the offences for which the sentence is passed: Ma Zhu Jiang v Secretary for
Justice [2008] 6 HKC 464.
E. Plea of Guilty
General entitlement to discount
The general principle is that an offender who pleads guilty to an indictment may 5–83
expect due credit, in the form of a reduction in the sentence that would have been
imposed if he had been convicted by the jury on a plea of not guilty: HKSAR v
Shaer Chun Keung [1998] 1 HKLRD 348. To that principle there are exceptions,
which a court should identify when relying upon them: HKSAR v Li Tak Yin [2003]
1 HKLRD 519. The policy of the courts is to encourage pleas of guilty, with the con-
comitant saving of time and expense, by giving a discount: R v Yu Man Wu [1995] 2
HKCLR 202.
Where two defendants are sentenced for the same offence, one having pleaded
guilty and the other having been convicted by the jury, the offender who has pleaded
guilty should normally receive a shorter sentence on that account, other things being
equal: R v Ross (1983) 5 Cr App R (S) 318, CA. It will normally be inappropriate to
impose the maximum sentence on an offender who has pleaded guilty.
469
Where a judge takes a plea of guilty into account, it is important that he says that he
has done so: R v Fearon [1996] 2 Cr App R (S) 25, CA. The fact that the court did not
specifically mention in his sentencing remarks that credit was being given for a guilty
plea does not mean that the Court of Appeal will necessarily reduce the sentence; if
it is clear from the nature of the sentence in relation to the offence that credit was in
fact given, there will be no reduction: R v Bishop [2000] 1 Cr App R (S) 432, CA; R v
Wharton (The Times, 27 March 2001), CA. It is, however, desirable that court should
indicate that credit has been given: R v Lau Cheung Chan (CACC 192/1992, [1993]
HKLY 430): see also HKSAR v Lam Kin Chung [2007] 2 HKC 451.
If the discount is not allowed, reasons should be given: HKSAR v Man Kam Shing
(CACC 10/1997, [1998] HKLRD (Yrbk) 311). Such reasons should be excep-
tional: HKSAR v Chiu Chi Wai (No 2) [2000] 1 HKLRD 704.
Extent of discount: Impact of Criminal Record

5–84 A guilty plea will usually attract a discount in sentence of one-third: Secretary for
Justice v Chau Wan Fun [2006] 3 HKLRD 577. However, much depends on the timing
of the plea, with late pleas attracting lesser discounts (see 5-85, below): HKSAR v Ngo
Van Nam [2016] 5 HKLRD 1. If a defendant wishes to obtain a discount in circum-
stances where the verdict of the jury, or the plea eventually accepted by the pros-
ecution, matches that which he previously offered unsuccessfully to the prosecution,
he should ensure that he makes a clear statement of his position in court and on
the court record, and adheres to his stated position throughout the proceedings; the
actual amount of the discount depends on the stage at which the plea was clearly en-
tered on the court record: HKSAR v Lam Kai Man [2020] HKCA 624 (CACC 246/
2019, 27 July 2020).
The true foundation for the discount is not a reward for remorse or its antici-
pated consequences, but acceptance that it is in the public interest to provide the
discount: HKSAR v Wang Wei [2010] 5 HKC 45, applying R v Cameron (2002) 187 ALR
65. The practice of granting a discount for a guilty plea has also been said to apply to
cases where a defendant is fined: R v Paul Y. ITC Construction Ltd. (HCMA 63/1997,
[1997] HKLY 371); in HKSAR v Tai Hing Worldwide Development Ltd [2015] 3 HKLRD
358, a fine of $60,000 was reduced to $40,000, to give credit for the guilty plea.
A discount of one-third is usually to be regarded as the high watermark of the dis-
count given to a defendant who pleads guilty in good time: HKSAR v Leung Shuk Man
[2002] 3 HKC 424. A court errs if it awards a discount in excess of one-third in the
absence of good reason: Secretary for Justice v Herzberg [2010] 1 HKLRD 302. If a de-
fendant makes a voluntary repayment of his ill-gotten gains in circumstances where
these might not otherwise have been returned, an additional discount may be appro-
priate: HKSAR v Wen Zelang [2006] 4 HKLRD 460.
In the case of an offender whose offence and criminal record suggest that he is a
person from whom the public require protection, a higher starting point will be justi-
fied to protect the public: HKSAR v Chan Pui Chi [1999] 2 HKLRD 830; HKSAR v Ngo
Van Huy [2005] 2 HKLRD 1. From that enhanced sentence the customary discount
may then be made. In HKSAR v Wan Wai Lun [2018] 1 HKLRD 1022, it was said that
the principle that a sentence can be enhanced when a defendant has previously been
convicted of a same or similar offence ‘is best exemplified where offences of dishon-
esty, sexual offences or offences of violence were concerned’ [18] per Macrae JA. An
enhancement for a bad record may, however, be inappropriate if there is a hiatus
between the original offence and the current offence: HKSAR v Li Wai Keung [2012]
2 HKC 161.
An offender who voluntarily surrenders to the police and admits an offence which
cannot otherwise be proved against him is entitled to more than the usual discount: R
v Hoult, (1990-1991) 12 Cr App R (S) 180, CA. Although a discount of more than one-
third is occasionally given to a defendant who voluntarily confesses and pleads guilty
notwithstanding a lack of evidence to link him to the offence, this has usually been
no more than a few months: HKSAR v Ma Ming [2013] 1 HKLRD 813. Recent thinking
treats the one-third discount as the maximum in these circumstances, and it has been
emphasized that a court’s withholding of any extra discount is not an arguable ground
of appeal: HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 [38]-[41].
470
The various consequences beneficial to the prosecution, its witnesses and the court
that flowed from a timely plea of guilty are all subsumed within the discount of one-
third from the starting point that is now almost invariably afforded to defendants who
enter a timely plea: see HKSAR v Jain Nikhil [2007] 2 HKLRD 640, CA.
Withholding the discount

In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, it was held, in a significant departure 5–85
from earlier practice, that the timing of the guilty plea is all important, with the full
one-third discount going to the defendant who pleads guilty at an early stage (or indi-
cates an intention to do so), and a reduction of 20% being “the appropriate discount
to be afforded to a defendant who pleads guilty only on the first day of trial” (per Lunn
VP); if a plea is entered after the trial has begun, the discount will be even less, and
“will reflect the circumstances in which the plea was tendered”. That the evidence is
overwhelming does not disentitle the offender to the usual discount: HKSAR v Wong
Ka Keung (CACC 35/1998, 28 January 1999). That the accused is caught red-handed
does not affect the position: HKSAR v Lo Chi Yip [2003] 3 HKLRD 270. If, however, the
offender absconds while on bail, this “will normally cut into the discount that might
otherwise be expected”: HKSAR v Chow Tak Fuk (CACC 428/2004, [2005] HKEC 227).
That the accused has testified for a co-accused and been disbelieved will not ad-
versely affect him: HKSAR v Chan Man Chau (CACC 503/1999, 7 November 2000)
(see also R v Lawless [1988] 2 Cr App R (S) 176). Things might be different if the
accused deliberately sets out to mislead the court in order to achieve a lesser sen-
tence: R v Charters (1997) 98 A Crim R 52. Appellants who are prepared to testify
against their confederates should not lose the benefit they would have gained from
doing so because the confederate accepted the truth of the case against him and
pleads guilty: HKSAR v Cheng Chong Shing [2003] 3 HKLRD 989.
The gravity of the offence may on occasion justify the selection of a lesser discount: see
R v Cheung Cheuk Man (CACC 229/1994, [1994] HKLY 454); Secretary for Justice v Wong
Kwong Fei [1998] 1 HKC 739; R v Chu Kwai Ying (CACC 250/1996, [1997] HKLY 321).
The discount may be affected if the accused absconds on bail and pleads guilty after cap-
ture: HKSAR v Lam Kin Lun (CACC 294/1997, [1997] HKEC 184); HKSAR v Yiu Tat Choy
(CACC 613/1997, [1998] HKEC 295).
The full discount given to a defendant for his plea of guilty should be reduced to
reflect his absconding while on bail. The usual discount afforded to a defendant who
pleads guilty after earlier absconding is within the range of 20% to 25%: HKSAR v Lo
Kam Fai [2016] 2 HKLRD 308.
If the accused after pleading guilty proceeds unsuccessfully to challenge the facts
upon which the prosecution rely, as in a Newton hearing, this may place him “in a
position less advantageous than had he pleaded guilty and accepted the true facts
of the case”: HKSAR v Tong Kim Ching [2002] HKLRD (Yrbk) 340. See also R v Chan
Leong [1995] 2 HKCLR 219; HKSAR v Yung Man Chun (CACC 281/2006 [2007] HKEC
1118), HKSAR v Chong Chee Meng [2008] 6 HKC 407; HKSAR v Liu Lin Feng (CACC
206/2011, 03 May, 2012).
An accused who only pleads guilty after a retrial has been ordered on appeal has
not entered a timely plea, and the court may reduce the customary discount to reflect
this: HKSAR v Chui Chi Wai (No 2) [2000] 1 HKLRD 704; HKSAR v Kwok Wai Hung [2004]
3 HKC 82; HKSAR v Chan Wing Tim [2008] 5 HKC 325.
In HKSAR v Wong Kam Shing Jackie [2010] 4 HKC 580, the defendant was charged
with murder. His offer to plead guilty to manslaughter by reason of provocation
was rejected by the prosecution. After trial, the defendant was convicted of man-
slaughter. It was held that it was well within the judge’s discretion to give the de-
fendant less than then full one-third discount for his plea to manslaughter when,
during the course of the trial, the defendant had given evidence effectively asserting
self-defence and his counsel had advocated for a full acquittal on that basis in his
final address to the jury.
In general, the usual one-third discount is given where the defendant pleads guilty
without wasting the court’s time. In deciding whether less than one-third discount is to
be given, the main consideration is not the nature of the defendant’s application (ie
whether it arises from a dispute as to the facts of the case or whether it is for a change
471
of plea from guilty to not guilty), but is whether the defendant has wasted the court’s
time by requiring the court to deal with the application: HKSAR v Thattephin Tanyamon
[2008] 5 HKLRD 155.
F. Consecutive Sentences of Imprisonment

Authority to impose
5–86 Where an offender is convicted on two or more counts of an indictment, or on two
or more indictments, the court should normally impose a separate sentence on each
count of each indictment. The sentences imposed may be ordered to run concur-
rently with each other, or consecutively, or they may overlap. The court should indi-
cate which sentences are imposed in relation to which counts.
For cases establishing the authority of a court to impose consecutive sentences on
different counts, or different indictments: see Att-Gen v Kwok Yik Kei (CAAR 10/1985);
R v Ng Ka Ling [1989] 1 HKLR 64; HKSAR v Kong Yung [1999] 1 HKC 395; Secretary
for Justice v Tseung Mang Ka [2001] 2 HKLRD 115; HKSAR v Ngai Yiu Ching [2011] 5
HKLRD 690.
Since the desired totality of sentence can often only be achieved when a court or-
ders sentences to run consecutively or concurrently, the use of this technique cannot
be stigmatised as “arbitrary”. After all, its “purpose and function is to ensure an ap-
propriate totality of sentence and the selection of which sentences are ordered to
be served consecutively or concurrently is undertaken with that specific end in
mind”: HKSAR v Kwok Shiu To, William [2006] 2 HKC 421.
It is wrong in law for a court to order a fixed-term sentence to run consecutively to
a life term: HKSAR v Gurung Rajendra Bikram [2012] 4 HKLRD 133. Such sentences
must be ordered to run concurrently. A life sentence ends with the death of the of-
fender, and a fixed-term sentence, if consecutive, cannot take effect.
Offenders serving existing sentences

5–87 Where an offender who is already serving a sentence of imprisonment is sentenced
to a further term of imprisonment, there may be confusion as to when the new term
commences if the offender is told the new sentence will begin when the term of im-
prisonment he is serving expires. If the offender is serving consecutive prison sen-
tences, this may result in the new sentence starting when the term currently being
served expires.
The English Practice Direction (Sentence) (1959) 43 Cr App R 154, may be of as-
sistance in Hong Kong:
“The court’s attention has been drawn to a difficulty which sometimes arises when
a sentence is expressed to begin ‘at the expiration of the term of imprisonment you
are now serving’ or words to the same effect. If, as sometimes happens, the prisoner
is already subject to two or more consecutive terms of imprisonment, the effect of
such a formula is that the new sentence will begin at the expiration of the term he is
then serving which may be the first of two consecutive terms. This will often not be
the intention of the court giving the new sentence.
“It is suggested that the simplest course would be to use some such formula as ‘con-
secutive to the total period of imprisonment to which you are already subject’. The
only exception to the use of such a formula would be if the intention was that the new
sentence should be concurrent with one of the previous sentences.”
Offences arising out of same transaction

5–88 The “one transaction” rule was developed by the courts “in an attempt to safeguard
fairness to the offender by ensuring that he was not punished twice for the same con-
duct”: HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, per Stock VP.
As a general principle, consecutive terms should not be imposed for offences which
arise out of the same transaction or incident, whether or not they arise out of precisely
the same facts, but much is left to the discretion of the court: see HKSAR v Liu Chi
Keung (CACV 317/1999, [1999] HKLRD (Yrbk) 347); Att-Gen v Bow Kin Lun [1995] 2
472
HKCLR 168; Secretary for Justice v Wong Kwok Kau [2004] 3 HKLRD 208. Where the facts
relating to two offences arise out of the same transaction they should, in principle,
be concurrent: see HKSAR v Kwai Ping Hung (CACC 73/219 & 295/2005, [2007]
HKEC 173), and also Secretary for Justice v Liu Chi Yung (CAAR 3/2006, [2007] HKEC
58). When a defendant is found to have a small quantity of drugs on his person and a
larger quantity at his home, the nexus between the two offences is reflected in concur-
rent sentences for trafficking in dangerous drugs: HKSAR v Wan Lau Mei (CACC 389/
2013, [2014] HKEC 528). Concurrent sentences are normally appropriate for an of-
fender convicted of breach of a deportation order and remaining unlawfully in Hong
Kong: HKSAR v Ta Dinh Son [2014] 3 HKC 529. If offences of child pornography and
indecent assault are inter-connected with the same victim, concurrent sentences may
be appropriate: HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486. Consecutive sentences fall
for consideration for burglary and a related failure to surrender to custody whilst on
bail: HKSAR v Lo Kam Fai [2016] 4 HKC 204.
A court may depart from the principle requiring concurrent sentences for offences
forming part of one transaction if there are exceptional circumstances or the nature
of the offences is quite different: Att-Gen v Kwok Yik Kei (CAAR 10/1985, [1986] HKLY
357); R v Ng Ka Ling [1989] 1 HKLR 64; Secretary for Justice v Tseung Mang Ka [2001] 2
HKLRD 115: see also R v Jordan [1996] 1 Cr App R (S) 181, CA and R v Fletcher [2002]
Crim L R 591 CA, (consecutive offences for indecent assault and threats to kill arising
from the same incident justified, the gravamen of the offences being different) and
HKSAR v Lau Pang [2004] 3 HKLRD 565 (sentence for burglary consecutive to sen-
tence for unlawful remaining in Hong Kong).
Although the general rule is that where a defendant is convicted of trafficking in
dangerous drugs, he will usually receive a concurrent sentence if he is also convicted
of simple possession of part of the whole (on the basis of self-consumption), this is
because he should not receive a heavier total sentence than he would have received
had he been convicted of trafficking in the whole amount; if, however, he is convicted
of trafficking in only a small portion of the whole, consecutive sentences may be ap-
propriate, subject to totality: HKSAR v Gurung Laxman [2017] 3 HKLRD 483, [69].
However, provided that “the total sentence is not greater than that which the appel-
lant would have received for trafficking in the whole of the drugs then it is perfectly
proper to impose a partially consecutive sentence””: HKSAR v Wong Yuen Fat [2017] 4
HKLRD 59 [58].
If a defendant is charged with trafficking in two different types of drugs and the
amounts are significant, an enhanced starting point for sentence may be appro-
priate: HKSAR v Cheung Yuk Sim, Tenny [2017] HKCA 588 [15].
Where an offender attempts to interfere with the course of justice in relation to the
trial of charges against him, any sentence for the offence of attempting to pervert the
course of justice should normally be consecutive to the sentence for the principal of-
fence: Att-Gen’s Reference (No 1 of 1990) (R v Atkinson) 12 Cr App R (S) 245, CA. Where
drug offences are committed on the same day on closely linked facts, it will have been
proper for the judge to have calculated the overall starting point by combining the
weights of the drugs in each charge to arrive at a total weight: HKSAR v Chan Chui Man
(CACC 427/2013, [2014] HKEC 776).
In the vast majority of cases involving a series of offences, the preferable course is to
tailor a sentence to the individual offence and then to order them to be served partly
concurrently so as to achieve a proper totality: see HKSAR v Tang Chi Ming [2008] 2
HKLRD 225.
The rule of concurrent sentences, appropriate for offences that can be said to have
been committed in the course of a single transaction, is not an inflexible one. As
long as the final sentence achieves the correct totality, sentences which are partly con-
current and partly consecutive for closely linked offences are not inappropriate: see
HKSAR v Iu Wai Shun (CACC 66/2007, [2007] HKEC 2098).
Offences committed while on bail

If a defendant commits another offence whilst on bail, there will be conse- 5–89
quences. In HKSAR v Leung Ting Fung [2015] 1 HKC 290, CA, it was held that
“the correct approach, consistent with principle, is to regard the fact that the
473
offence was committed whilst on bail as a factor seriously aggravating that offence
and to reflect the presence of this seriously aggravating factor by enhancing ap-
propriately the starting point for sentence”, per McWalters JA. The issue “is not
whether the sentence should be enhanced, but by how much it should be en-
hanced”: HKSAR v Wong Yuen Fat [2017] 4 HKLRD 59 [48]. Subject to totality,
consecutive sentences may be appropriate for the two offences: HKSAR v Chau Lap
Pui [2007] 2 HKC 342.
Breaches of non-custodial sentences, etc

5–90 Where an offender commits a further offence during the currency of a suspended
sentence or conditional discharge, and is sentenced to a term of imprisonment for
that offence, it will normally be appropriate for any sentence of imprisonment im-
posed for the earlier offence to be ordered to run consecutively: see R v Webb (1953)
37 Cr App R 82, CCA. A similar principle applies to the activation of a suspended sen-
tence (see §5–106, below).
G. Totality of Sentences
5–91 In HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, CA, per Stock VP, said that “the
importance of the totality principle cannot be overstated.”
A court that passes a number of consecutive sentences should review the ag-
gregate of the sentences, and consider whether the total sentence to be served is
appropriate, taking the offences as a whole. A court should, first, determine the
starting point for each offence after mitigation, then, second, decide the appro-
priate sentence for each offence after mitigation, and then, finally, fix the total
sentence to be served: HKSAR v Yeung Kwai Kuen [2002] 3 HKLRD 91. When a
court is “dealing with cases involving a series of offences the question of totality
is paramount”: HKSAR v Kwok Shiu To, William [2006] 2 HKC 421. The measured
application of the totality principle contributes to an overall sentence which is jus-
tifiable and proper, and not crushing.
It is necessary for the court to stand back and view the total sentence against the
whole of the defendant’s culpability and assess whether it would be fair to the de-
fendant, in the sense of not causing him to be punished twice for the same conduct,
and also not imposing a crushing punishment that is disproportionate to the actual
culpability; what is required is a sentence that is “sufficient having regard to the usual
principles of deterrence, rehabilitation and denunciation”; HKSAR v Ngai Yiu Ching
[2011] 5 HKLRD 90.
The duty of the court to review the totality of the sentence applies in any case
where consecutive sentences are, or might be imposed: HKSAR v Lee See Chung,
Stephen [2013] 5 HKLRD 242 [51]. See also Att-Gen v Cheung Kai-man, Dominic
[1987] HKLR 788, CA and R v Wong Kwai Pui (CACC 522/1989, [1990] HKLY 423).
Where a court decides to adjust a series of sentences because the aggregate is too
high, it is generally preferable to do so by ordering sentences to run concurrently
rather than by passing a series of short consecutive sentences, but where concur-
rent sentences are imposed for a series of offences of varying gravity, the individual
sentences should not be out of proportion to the individual offences for which they
are imposed: see R v Smith [1975] Crim LR 468; approved in HKSAR v Cho Kwun
Wah (HCMA 81/ 1998, [1998] HKLRD (Yrbk) 307). It is not desirable to combine
a very long sentence with a very short sentence: R v Gorman (1993) 14 Cr App R
(S) 120.
The District Court must ensure that the total sentence does not exceed its max-
imum of seven years: section 82(2)(a) of the District Court Ordinance, and the
Magistrates’ Court that it does not breach its three-year limit section 57 of the
Magistrates Ordinance. On a true construction of section 82(2) of the District
Court Ordinance, a judge, in assessing sentence, has the power to adopt a start-
ing point in excess of seven years provided the actual sentence imposed does not
exceed that seven-year limit. HKSAR v Tsang Man Wai (CACC 124/2008, [2008]
HKEC 1964).
474
In certain circumstances, multiple offences committed on different occasions can
affect sentence. A defendant’s criminal record which shows that he has previously
committed a series of similar offences, may of itself warrant an enhanced sentence
for the latest offence. In such a case, the court is not dealing with the appropriateness
of the sentences for the other, earlier offences. In Att-Gen G v Lui Kam Chi [1993] 1
HKC 215, the court held that, in the normal course of events, it is not appropriate for
such sentences to run wholly concurrently. If the second offence is committed while
the defendant is on bail for the first offence, the correct approach was, first, to im-
pose an appropriate sentence for the first offence viewed on its own and against the
background of the defendant’s history, including his criminal record, and relevant
mitigation, and, next, to impose an appropriate sentence for the second offence, and,
finally, to look at the question of totality: see HKSAR v Ng Ngai Shan (CACC 197/2008,
[2008] HKEC 1880).
Where a defendant is charged with both a drug trafficking offence and a money
laundering offence with respect to the proceeds of that same drug trafficking, then
allowance can properly be made for this by making the whole or a substantial part of
the sentences concurrent. However, when the two charges are separate and discrete,
i.e. the funds are not referable to the actual drug trafficking charged, then only in the
context of totality can some part of the sentences on the money laundering offence
be made concurrent to the sentence for the drug trafficking offence. Where two or
more drug trafficking offences occur on the same day and at the same time, but there
are two or more charges instead of one, primarily because the drugs are located in dif-
ferent places, the court usually adds the total of the drugs’ active ingredients together
to arrive at a notional starting point: HKSAR v Lam Chi Wa [2009] 1 HKLRD 483). The
principles governing the relationship between the predicate offence and the money
laundering offence, in the sentencing context, are reviewed in HKSAR v A male known
as Boma Amoso [2012] 2 HKLRD 33.
In R v Bazeguore and Shuti [2020] EWCA Crim 375, it was said there is generally no
need to adjust a sentence on the basis of totality to reflect the sentences imposed upon
the defendants by a foreign court, one of the reasons being that “they must be taken
to accept the risk of criminal sanctions in multiple jurisdictions of potentially variable
severity being imposed upon them”[19] (per Green LJ).
Other forms of sentence

A sentence of imprisonment should not be made consecutive to a sentence of life 5–92
imprisonment, given that the latter is a life term: HKSAR v Gurung, Rajendra Bikram
[2012] 4 HKLRD 133. A sentence of life imprisonment should equally not be imposed
to run consecutively to an existing determinate sentence: see R v Jones (1962) 46 Cr
App R 129 at 149, CCA. It is also not desirable to mix immediate and suspended cus-
todial sentences: Att-Gen v Tse On [1986] HKLR 215.
H. Disparity of Sentence
Summary
A consistent approach to the sentencing of offenders convicted of the same or 5–93
similar offences is, wherever possible, the objective of sentencing, and inconsistent
sentencing is, if feasible, to be avoided.
Where two or more offenders are to be sentenced for participation in the same
offence, the sentences passed on them should be the same, unless there is a rele-
vant difference in their responsibility for the offence or their personal circumstances.
A sentence will not be reduced on the basis of disparity unless there is such a glaring
difference between the treatment of one defendant compared with one or more
other defendants by the same judge at the same time as to give rise to a real sense
of grievance, and where such difference is not justified by any relevant distinction in
their culpability or personal circumstances: HKSAR v Chan Chi Fai (CACC 432/2005,
[2006] HKEC 748): see also HKSAR v Yu Pak Lun [2003] 2 HKLRD 567; Securities and
Futures Commission v Grover Akashdeep [2007] 4 HKC 525.
475
If sentences which are dissimilar are, for no good reason, imposed on offenders by
different courts for offences which are of the same type, this will cause legitimate griev-
ances, and parity of sentencing is essential: HKSAR v Liang Yaqiong [2008] 6 HKC 263.
To reduce the possibility of disparate sentencing occurring, joint trials or joint appeals
of co-defendants are to be ensured, wherever possible, and sound reasons must exist
if any other course is to be pursued: HKSAR v Osman Goni (HCMA 745/2012, [2013]
HKEC 1049).
(1) Notes on disparity of sentence

Different forms of sentence
5–94 Where only one defendant is amenable to a particular sentence, but the other is
not, it is not wrong in principle to impose that sentence on that defendant and impris-
onment on the other: R v Berry (1985) 7 Cr App R (S) 392, CA.
Differences in responsibility
5–95 A difference in the sentences imposed on co-defendants may be justified by their
different roles in the offence, see Att-Gen v Tam Ka lok [1990] 1 HKC 201, or if one is
a serving police officer: see R v Wong Pui-kei (CACC 622/1995). See also HKSAR v Law
Chung Hin [2012] 1 HKLRD 450 (manslaughter; roles in gang attack); HKSAR v Lee
Shinwon [2012] 1 HKC 236 (role differentiation in human trafficking operation).
The Court of Appeal regularly declines to apportion blame and adjust sentences
to any marked degree when defendants are parties to a joint enterprise: HKSAR v Lai
Kam Tong [2005] 1 HKC 232. This, however, may change if one defendant acts outside
the scope of the agreed plan: HKSAR v Nawaz Ahsan [2019] HKCA 459 (CACC 121/
2008). Distinctions in sentences between drugs couriers acting together should be
avoided, for otherwise the dealer will so design matters as to play the sentencing band
for the narcotic in question: HKSAR v Somphaksorn Lamyai [2009] 1 HKC 437.
Relevant difference in personal circumstances

5–96 If one of the offenders is younger than the other, has a clear record, and has not
profited from the crime, this may justify different sentences: R v Choi Kuk Sheuk (CACC
326/1994). A court can distinguish between an adult and a youth: R v Harper (1995)
16 Cr App R (S) 639. The mitigation available to one offender may not benefit an-
other: R v Lam Lai Chun [1988] HKCU 223 (CACC 343/1988). If the defendants are
all young, the court should ensure, so far as possible, that each receives a sentence
that is appropriate for his needs, and “will best give him a chance to reform”: HKSAR
v Cheng Ka Wing [2001] 2 HKLRD 260. Other things being equal, a four-year age gap
between offenders aged 21 and 17 may not justify a sentencing differential: HKSAR v
Jiang Siyuan (CACC 160/2005, [2005] HKEC 1483).
Suspension of sentence
5–97 A suspended sentence is as much a sentence of imprisonment as an immediate
term. Objectionable disparity does not arise if in respect of one offender but not an-
other; exceptional circumstances exist to justify the suspension of the prison term: Att-
Gen v Lau Chiu Tak [1984] HKLR 23.
Accomplice already dealt with by a different judge

5–98 Wherever practicable, all offenders involved in a particular offence should be sen-
tenced by the same judge: see HKSAR v Wong She Wa (CACC 58/1998, [1999] HKEC
1008), but this may not always be possible. Where a judge has to deal with an offender
whose accomplice has been dealt with by another judge, the second judge should pass
the sentence which he considers appropriate and leave the Court of Appeal to correct
any disparity: see R v Broadbridge (1983) 5 Cr App R (S) 269, where the court indicated
that the second judge should not adjourn to obtain information about the sentence
imposed by the first judge.
476
Disparity of sentence as a ground of appeal
A disparity in sentence is not, of itself, a ground of appeal if the sentence is other- 5–99
wise appropriate having regard to the nature of the offence and to the offender
himself: HKSAR v Cheng Sau Yuk [2012] 5 HKLRD 415. Something more than mere
disparity must be shown before an appellate court will intervene on the basis that the
defendant who received the longer sentence feels a sense of grievance. There must
also be objectionable disparity: HKSAR v Ng Man Yee [2014] 4 HKC 241.
Disparity of sentencing may occur in different ways. The most obvious is where
one co-defendant receives a more severe sentence than the other, for no good
reason: HKSAR v Wong King Wai [2008] 2 HKC 614. There may also be disparity when
the defendants receive identical sentences, despite relevant differences in their culp-
ability or personal circumstances: Att-Gen v Tam Ka Lok [1990] 1 HKC 201.
If a disparate sentence is challenged, the test applied on appeal is “would right-
thinking members of the public, with full knowledge of the relevant facts and circum-
stances, learning of this sentence consider that something had gone wrong with the
administration of justice?” (per Lawton LJ in R v Fawcett (1983) 5 Cr App R (S) 158,
CA). A disparity submission will only ever succeed in relation to sentences passed on
different offenders on the same occasion: see R v Stroud (1977) 65 Cr App R 150, CA,
followed in R v Lam Mo Kwong (CACC 175/1992, [1992] HKLY 394).
If there is a disparity between sentences passed on the same occasion by the same
judge, the sentence may be varied if the judge has not properly apportioned blame be-
tween the defendants. If the sentence was otherwise appropriate, the sentences should
stand: R v So Hung Lee [1986] HKLR 1049, applied in HKSAR v Leung Wai Han [2002]
HKLRD (Yrbk) 317. In HKSAR v Leung Yiu Ming [2000] 1 HKLRD 247, CA, it was
made plain that if an accused had been sentenced in accordance with relevant prin-
ciples, a disparity argument may not succeed. If an accused has received a proper sen-
tence, it is not open to him to complain that the difference between his sentence and
that of a more culpable co-accused is not as great as he would have liked: R v Chan Wai
Chiu [1992] HKLY 329; HKSAR v Wong Kam [2013] 1 HKLRD 39. An inappropriate
sentence passed on a co-accused can properly be disregarded: Att-Gen v Ngan Suen Yee
[1987] HKLR 451.
Where it is argued that one sentence is right and the other wrong, the preferred
approach of the courts is to ignore the sentence passed on a co-accused and to con-
sider merely whether the sentence actually passed on the appellant is appropriate.
Therefore, the court should not compare the two defendants’ sentences in order
to determine whether the appellant’s sentence is appropriate: HKSAR v Yu Pak Lun
[2003] 2 HKLRD 567; HKSAR v Leung Ka Lun (CACC 88/2002). That one accused was
the beneficiary of an extraordinarily light sentence on one occasion does not entitle
his co-accused to the benefit of the same windfall on another: HKSAR v Chow Tak Fuk
(CACC 428/2004, [2005] HKEC 227).
The mere fact that one defendant received an apparently unduly lenient sentence
is no ground for interfering with an otherwise proper sentence imposed on a co-
accused: HKSAR v Lui Kam Ming [2008] 5 HKC 145; see, however, HKSAR v Wong King
Wai [2008] 3 HKLRD 293.
I. Selected Aggravating Factors

If a court intends to enhance the sentence because of aggravating factors, it should 5–100
state its starting point first, before taking account of the aggravating factors: HKSAR v
Ganbold [2015] 1 HKLRD 999.
Factors which may operate to aggravate the seriousness of the criminality in-
clude: Abuse of high office: Secretary for Justice v Musa [2001] 1 HKC 14; Assault by
litigant against legal officer engaged in litigation: Secretary for Justice v Ma Kwai Chun
[2008] 5 HKC 1; Breach of trust: HKSAR v Poon Kar Yue [2018] HKCA 684; Committing
an offence on bail: HKSAR v Leung Ting Fung [2015] 1 HKC 290; Credit card fraud
with international dimension: HKSAR v Loh Joo Hooi [2014] 3 HKC 301; Criminal ante-
cedents: HKSAR v Chan Pui Chi [1999] 2 HKLRD 830; Crossborder trafficking: HKSAR
v Chong Heung Sang [2010] 3 HKC 88; HKSAR v Wong Kap Si (HCMA 640/2005);
477
Domestic worker as victim: HKSAR v Tan Ngan Huay (HCMA 481/2006, [2006] HKEC
1750) (assault); HKSAR v Chan Tung Hing, Band [2010] 3 HKC 304 (rape); Drink
and drugs: Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751; R v Lindley 2 Cr
App R (S) 34; Excessive force: R v McInerney and Keating [2003] 2 Cr App R (S) 39;
Exploitation, multiple employment or repeat offending: Secretary for Justice v Ho Mei
Wah [2004] 3 HKLRD 270; Failing to stop a sampan and ignoring signals of police
in assisting passage cases: HKSAR v Yeung Lap [2008] 5 HKC 130; Form 8 recogni-
zance holder committing serious offence: HKSAR Ali Saif [2018] 6 HKC 119 (drug
trafficking); HKSAR v Singh Gursevak [2019] 2 HKLRD 274 (robbery); “The enhance-
ment for being a Form 8 recognizance holder must be substantial otherwise it has no
deterrent value” [32], per Macrae VP in HKSAR v Butt Muhammad Gulzar [2010] HKCA
597 (CACC 305/2019); Gang attack: HKSAR v Ma Tik Lun Dicky [2015] 1 HKLRD 371;
Gratuitous violence: R v Roberts and Roberts (1982) 4 Cr App R (S) 8; Secretary for Justice
v Ma Ping Wah [2000] 2 HKLRD 312; Illegal immigrants working in vice establish-
ments: HKSAR v Pang Man Wai [2008] 4 HKC 413; Impact on others: Re Applications
for Review of Sentences [1972] HKLR 370; Immigration status (Form 8 holder): HKSAR v
Londono Montealegre [2017] 1 HKLRD 450; Immigration status (mandated refugee and
torture claimant): HKSAR v Junaid Ahmed [2018] HKCA 159; Indecent assault on child
by his elder, relative or someone responsible for taking care of the child: Secretary for
Justice v HKL [2004] 3 HKLRD 235; Secretary for Justice v Lam Yu Wai [2015] 1 HKLRD
393; Indecent assault by taxi driver on passenger: HKSAR v Ho Tung Yuen (CACC 59/
2011, [2011] HKEC 1249); International nature of the offence: HKSAR v Ho Kam
Fu (CACC 402/2003); Multiple deaths resulting from dangerous driving: HKSAR
v Park Myung Hwa [2004] 3 HKC 564; Organised criminal activity: R v Vy Van Kien
[1991] 1 HKLR 422; Planning and premeditation: HKSAR v Fok Ka Po, Joe [2019]
HKCA 134; Police officer defendant: HKSAR v Chow Koon Shing [2007] 3 HKLRD
10; HKSAR v Chan Kin kwok [2007] 4 HKC 517; Professional burglary: HKSAR v Hui
Chi Ming [2008] 6 HKC 12; Recruitment to crime of young person: HKSAR v Fok Ka
Po, Joe [2019] HKCA 134; Repeat offender: HKSAR v Chan Pui Chi [1999] 2 HKLRD
830; Sophisticated operation of the vice establishment: Secretary for Justice v Lee Cho
Keung [2004] 4 HKC 179; Substantial profits to be made from street scams: HKSAR
v Li Shou Wen (CACC 269/2006, [2007] HKEC 306); Substantial number of applica-
tions to several different banks for credit facilities in significant sums: HKSAR v Wu
Ming Fat (CACC 531/2002, [2004] 2 HKLRD G9); Tendency to commit further of-
fences but for being arrested: HKSAR v Wu Siu-kui (CACC 223/2006, [2007] 1 HKLRD
A4); Threat of terrorism: HKSAR v Ma Chiu Sing [2004] 2 HKLRD 974; Threatening
victim with syringe containing purportedly AIDS-infected blood: HKSAR v Zhang Wei
[2014] 6 HKC 599; Unlawful trafficking in dangerous drugs outside a methadone
clinic: HKSAR v Au Yeung Chuen Yee (HCMA 672/2011, [2012] HKEC 316); Value of
stolen goods: HKSAR v Ho Wing Yin [2010] 2 HKLRD 343 (handling); HKSAR v Lai
Kam Tong [2005] 1 HKC 232 (robbery); Violence against police officer: HKSAR v Chan
Wai Kwok (HCMA 569/2004, [2004] 3 HKLRD I6); Secretary for Justice v Liu Chi Yung
(CAAR 3/2006, [2007] HKEC 58); Violence during an unlawful assembly: Secretary for
Justice v Wong Chi Fung [2018] HKCFA 4; Vulnerability of the victim: Mo Kwong Sang v
R [1981] HKLR 610; Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289.
Although a list can be drawn up of aggravating and mitigating factors, a sentencing
court must look at the full circumstances and the overall culpability of the offender. In
assessing the overall seriousness of a crime, culpability is often the dominant factor. In
some cases, the fact that only some aggravating factors exist, but not others, may still
bring the case into a very serious category: see Secretary for Justice v Poon Wing Kay [2007] 1
HKLRD 660. A mathematical comparison of sentences for offences under different sec-
tions is not appropriate. Sentencing guidelines for similar offences are not immutable.
Starting points can be adjusted upwards or downwards in the presence of aggravating or
mitigating features: HKSAR v Lam Sze Mui (HCMA 862/2006, [2006] HKEC 2163). If a
defendant who has a bad criminal record has re-offended shortly after his release from
imprisonment, these are not to be treated as distinct bases for enhancing sentence, as the
latter factor merges into the former: HKSAR v Yu Chi Chiu [2017] 1 HKLRD 400.
478
The gravity of the crime has to be considered on two levels: the seriousness of the
charge and the seriousness of the offence. The need to protect public officers and
impose heavy sentences on those who attack public officers goes to the seriousness of
the charge. However, where the circumstances of the offence are not serious, the sen-
tencing judge has to take into account factors such as the background and record of
the defendant, whether remorse is shown, the importance of rehabilitation and public
interest, in determining the appropriate sentence: HKSAR v Tang Chi Yin (HCMA 40/
2005, [2005] 3 HKLRD G6).
The rule that it is normally not appropriate to pass a higher sentence for conspiracy
than can be passed for the substantive offence allows of exceptions. Its limits do not
apply in a case in which people came together in order to facilitate the substantive
offences and where only a conspiracy charge can adequately reflect the true crimin-
ality and scale of the extensive operation undertaken by the defendants: HKSAR v Tsoi
Chung Wang [2006] 1 HKC 482.
The defendant’s retention of private legal representatives for the purpose of his
trial is irrelevant to sentence: HKSAR v Yam Kong Lai [2008] 5 HKLRD 384.
Where a defendant is convicted of an offence pursuant to s 25(1) of the
Organized and Serious Crimes Ordinance (Cap 455), it is that offence for which
he should be sentenced. It would be quite wrong as a general principle to sen-
tence a defendant on the basis of an offence with which he is not charged. Where,
however, the underlying offence is of a particularly serious nature, a defendant’s
dealing with the profits of such an offence may well be an aggravating factor and
an enhanced sentence may be required as a matter of policy and general deter-
rence: HKSAR v Yam Kong Lai [2008] 5 HKLRD 384; see also Secretary for Justice v
Choi Sui Hey [2008] 6 HKC 166.
J. Selected Mitigating Factors

Sentencing is often described as an art, not a science. The sentence for an offence 5–101
needs, wherever possible, to be tailored according not only to the category of the of-
fence, but also to the situation of the defendant. Some offences are so serious that
little, if any weight can be given to the mitigation. Consistency of sentencing as be-
tween different offenders is also, wherever possible, an important consideration. At
the same time, the danger of sentencing becoming over-mechanical is to be guarded
against. Whatever a general sentencing policy may be, it should “never be one that ig-
nores the need for individual justice”: Secretary for Justice v Ma Kwai Chun [2008] 5 HKC
1. When a defendant seeks mercy, the court will need to “take account of the crime
the offender has committed and his personal circumstances”: HKSAR v Bayanmunkh
[2012] 2 HKC 233.
It has been said that: “Experience shows that the mitigation advanced sometimes
takes the form of a mantra in the courts; with the courts being told of the age, health
circumstances and number of an offender’s family members and of other matters
which have little to do whatsoever with what has led the particular offender to the
commission of the offence and what circumstances peculiar to the offender go in miti-
gation of sentence. There are certain offences – and these are well-known – in which
personal circumstances and the circumstances leading to an offence will count much
less than in others, because those offences demand, as a matter of public protection,
deterrence as an overwhelming consideration. Consistency in sentencing is important
but consistency does not dictate blindness to individual circumstances of a case and to
those of an offender. An overly rigid pre-occupation with uniformity can be inimical
to individual justice”: HKSAR v Leung Pui Shan (CACC 317/2007, [2008] HKEC 259),
per Stock JA.
All accused persons are equal before the law, be they high or low, and “the courts
do not visit extra punishment upon, or brush aside true mitigating factors in respect
of, a defendant who happens to be from a privileged background simply to make sure
that it cannot be said that such a person is being favoured”: Secretary for Justice v Amina
Mariam Bokhary [2011] 2 HKC 587, per Stock VP.
479
If one offender is singled out for prosecution, in circumstances where others who
are equally culpable have escaped prosecution for no good reason, this must “as a
matter of simple fairness, be a valid consideration to which a sentencing court should
have regard”: HKSAR v So Ping Chi [2018] HKCA 913, at [70], per Macrae VP.
Factors that may operate to reduce the seriousness of the penalty include: Age (young
or old): R v Lee Kong (CACC 556/1994, 14 March 1994); R v Chiang Sun-keung [1997]
HKLR 24; HKSAR v Lam Wai-tak [2004] HKLRD (Yrbk) 338; HKSAR v Tsang Chun
Yin [2018] 1 HKLRD 1128, [2018] HKCA 94; Assault through loss of temper: HKSAR
v Wu Kang Yau (HCMA 436/2004, [2004] 2 HKLRD E10); Confession: Secretary for
Justice v Tsui Kim-ming (CAAR 4/1997, 16 July 1997); Att-Gen v Wong Yim Ping [1995]
1 HKLR 211 (see §5–62, above); Delay in prosecuting: Att-Gen v Lo Ching Fai [1996]
2 HKCLR 19; HKSAR v Lee Kwok-hung (CACC 30/2005); HKSAR v Leung Ping Nam
[2008] HKLRD 178; Foreigner: HKSAR v Esmeralda (CACC 11/2004, [1999] HKEC
1149); Good character: HKSAR v Leung Ping Nam [2008] HKLRD 178; HKSAR v Leung
Shuk Man [2002] 3 HKC 424; HKSAR v Wong King Wai [2008] 3 HKLRD 293; Handler
not being organizer or distributor of proceeds of crime: HKSAR v Ho Wing Yin [2010]
2 HKLRD 343; Humanitarian considerations: HKSAR v SM Kawsar Ahammed (CACC
282/2014, [2014] HKEC 2049); Ignorance of the law: HKSAR v Andersson Marie Ulla
Pernilla (HCMA 387/2016, [2017] 2 HKLRD D1); Ill health: HKSAR v Tam Yuen-tong
[2007] 1 HKLRD 894; Loss of retirement benefits: HKSAR v Lee Yau-tak (CACC 427/
1998, [1999] HKEC 1149); but see HKSAR v Lau Ka-keung (CACC 200/2005, [2006]
HKEC 319) and Secretary for Justice v Shum Kwok Sher [2001] 3 HKLRD 386; Lowness
in the amount of outstanding wages due: Secretary for Justice v Sing Pao Newspaper
Management, Ltd [2008] 5 HKC 154; Mental illness: HKSAR v Chiu Peng, Richard [2002]
1 HKLRD 185; HKSAR v Chau Heung Yeung (CACC 296/2005, [2006] CHKEC 794);
Remorse: R v Tsui Mei Ying [2002] 4 HKC 689; HKSAR v Kwan Chi Hung [2004] 2
HKLRD 460; Restitution: Secretary for Justice v Hui Siu Man [1999] 2 HKLRD 236 (see
§5–382, below); HKSAR v Jackson-Lipkin Lucille Fung [2007] 3 HKC 147; HKSAR v
Fermin Arlyine Ganzon (HCMA 493/2005, [2005] 3 HKLRD I4); Undue influence by
others: HKSAR v Xu Xia-li [2004] 4 HKC 16; Views of victims (forgiveness): HKSAR v
Lee Yum Sang [2007] 2 HKC 599; see, however, HKSAR v Fan Tak Wan [2007] 5 HKC 50,
where the court held that the weight to be given to the element of forgiveness by the
victim in a case of wounding with intent would be lessened the more serious the na-
ture of the injuries; Voluntary surrender: HKSAR v Lau Man-cheung [2003] 3 HKLRD
634; see, however, HKSAR v Kum Chi wing (CACC 445/2006, [2007] HKEC 1/76).
The courts have discounted the following as mitigating factors in most situations:
Family circumstances: HKSAR v Esmeralda (CACC 11/2004, [2004] 2 HKLRD E11);
HKSAR v Cheng Sui-yin (CACC 468/2005, [2006] HKEC 1044); HKSAR v Siu Kam
Yung (CACC 512/2006, [2007] 3 HKLRD G4); HKSAR v Wong Tak Po (CACC 256/
2003, [2004] 2 HKLRD E14); HKSAR v Cheng Sui Yin (CACC 468/2005, [2006] HKEC
1044); see, however, HKSAR v Lau Pang [2004] 3 HKLRD 565, where the court held
that exceptional circumstances could arise which enabled a court to show mercy, as
where there had been a family tragedy; the death of the defendant’s wife might justify
a small reduction on humanitarian grounds when the child is left without a parent
to care for it: HKSAR v SM Kawsar Ahammed (CACC 282/2014, [2014] HKEC 2049);
Financial hardship: HKSAR v Lee Man Wai (CACC 386/2005, [2006] HKEC 96); Guilty
plea at re-trial: HKSAR v Kuok Wai-hong [2004] 3 HKC 82; Limited injuries to victim
through “sheer luck”: HKSAR v Fok Ka Po, Joe [2019] HKCA 134; Medical grounds: Yip
Kai Foon v HKSAR (2000) 3 HKCFAR 31, where the court held that medical grounds
“will seldom, if ever, be a basis for reducing the sentence for crimes of gravity”; see
also HKSAR v Li Kam-chan (CACC 425/2004, [2005] HKEC 1589) and HKSAR v Wong
Chi Choi (HCMA 628/2005, [2005] HKEC 1659); HKSAR v Lee Shu Wing (CACC 223/
2002, [2002] HKEC 1054) and also HKSAR v Chan Kau Tai [2008] 3 HKC 78 and
HKSAR v Bayamunkh [2012] 2 HKC 233; see however, R v Chan Kui Sheung [1996] 3
HKC 279 where the court held that in exceptional circumstances, a serious medical
condition might result in a lesser sentence, not because of any principle but as an act
of mercy; Mistaken belief in the potency of dangerous drugs: HKSAR v Yip Wai-yin
[2004] 3 HKC 367; see, however HKSAR v Ko Man-yin [2006] 2 HKLRD F7; Plight of
the offender: Secretary for Justice v Chau Wan-fun [2006] 3 HKLRD 577; Pregnancy after
480
commission of the offence: Secretary for Justice v Dank [2008] 4 HKC 483; see also HKSAR
v Milagros Costales Guillermo (HCMA 1166/2005, [2006] HKEC 1001); Provocation in
attack cases: HKSAR v Kan Wai Man (CACC 503/2003, [2004] 2 HKLRD G13), see,
however, HKSAR v Jiang Guohua (CACC 31/2005, [2005] 3 HKLRD H5).
Saving court time: In HKSAR v Chan Wai Hang [2012] 3 HKLRD 726, the argument
that the defendant who had been convicted after trial was entitled to a discount on the
basis that he had agreed to certain non-contentious matters, and had thus saved the
time of the court, was rejected. Effective case management was a part of the duty to be
expected of the defence, and this, without more, was not a basis for a greater discount.
Small discounts were given in HKSAR v Mah Shing [2013] 4 HKLRD 426, where the
defendant at trial confined himself to a legal submission, and in HKSAR v Koo Sze Yiu
[2013] 4 HKLRD 426, where the defendant did not challenge the prosecution case,
and simply made a political point. In HKSAR v Chan Chun Chuen (CACC 233/2013,
[2015] HKEC 2256), a defendant who halved the length of his trial by conducting his
defence “sensibly and sensitively”, by concentrating on the essentials, saw his sentence
of imprisonment reduced by 12 months “to reflect the manner in which his defence
was conducted”, per Lunn VP. Whether a limitation of issues at trial is a mitigating
factor is case specific: HKSAR v Lam Tsz Leung [2006] 2 HKC 295. There are cases
where the prosecution evidence is “effectively unchallengeable”: HKSAR v Wu Pak
Cheung [2002] 3 HKC 75, per McMahon J.
In terms of mitigating features, older cases which suggest that an additional discount
might be given where a victim was spared the ordeal of giving evidence must be viewed
against the general principle that the one-third discount is usually to be regarded as
the high watermark of the discount for pleading guilty in good time: Secretary for
Justice v Chau Wan Fun [2006] 3 HKLRD 577; HKSAR v Leung Shuk Man [2002] 3 HKC
424. In HKSAR v Yang Chia-cheng [2011] 3 HKLRD 610, a small discount was given to a
defendant who had admitted most of the prosecution case, thereby saving the victims
from the “agony” of having to rehearse their experiences.
Only in exceptional cases should a discount of more than one-third be given for
a timely plea: HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354. Although an additional
discount was previously regarded as appropriate where a defendant arrested for one
offence admitted to other offences not being investigated, this approach has now
yielded: HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, [38] - [41].
The starting point for sentence is “directed at the offence and its seriousness, not
at the offence and mitigating factors other than the guilty plea”: HKSAR v Wing Mei
Heung (CACC 273/2010, 3 November 2010). If the mitigation is accepted, this may
result in an extra reduction, over and above that attaching to the guilty plea: HKSAR
v Wong Siu Kwan (CACC 166/2001, 17 October 2001).
It is sometimes suggested that there is a principle that a deterrent sentence should
not be imposed on a first offender, but this is misleading. In HKSAR v Tai Chi Shing
(HCMA 579/2015, [2016] HKEC 565), Barnes J said “whether a deterrent sentence
is called for, even for a first offender, is case specific”. If an offence is serious in na-
ture and prevalent, the public interest may have to prevail over individual sentencing
considerations: HKSAR v Lam Sze Kei [2005] 3 HKLRD 273; HKSAR v Yu Ka Chun
(HCMA 617/2005). In HKSAR v Lam Ying Yu [2014] 2 HKLRD 895, a case of dan-
gerous driving causing death, it was said that “good character and remorse will not
usually be a reason for departing from the need to impose a deterrent sentence”.
The court has a discretion to impose a lighter sentence where the offence was
committed because of the force of personal circumstances: HKSAR v Kwok Cheuk Man
[2005] 3 HKLRD 698.
Where a person abandons his right to fight extradition proceedings in order to re-
turn and plead guilty, that abandonment is normally part and parcel of the element
of contrition of which the guilty plea is further evidence. However, where a defendant
decides not to contest the extradition proceedings but to fight the trial, contrition
does not come into the picture. Thus the question is whether any credit should be
given for the decision to return without contesting the extradition proceedings. The
Hong Kong courts recognize the public interest in the waiver by a defendant of his
right in extradition proceedings, since they incur costs and delay, and may be unsuc-
cessful. But whether credit should be given and its extent will be dictated by facts. It
481
will also be strange for a person who flees the jurisdiction to be placed in a better pos-
ition than a co-defendant who does not flee, simply because the former has decided
not to contest extradition proceedings. In such a circumstance a sentencing court
may take the view that no credit should be given for the decision to waive extradition
rights: HKSAR v Lam Tze Leung (CACC 476/2004, [2005] HKEC 2041).
K. Offenders Who Assist the Police

5–102 The law seeks to encourage criminals to co-operate with the law enforcement agen-
cies, and to assist the authorities to bring other offenders to justice. Such assistance
may take the form of information or testimony, or both. Those who co-operate in this
way will expect a benefit, and this usually takes the form of a discounted sentence, al-
though it may sometimes be a financial incentive. The principles governing assistance
to the authorities and the quantum of discount were reviewed in detail in Z v HKSAR
(2007) 10 HKCFAR 183 (CFA).
In Z v HKSAR (2007) 10 HKCFAR 183, the Court of Final Appeal confirmed
that it is the policy of the courts to take into account in mitigation of sentence
useful assistance the defendant has given to the authorities, and usually to give
an appropriate reduction from the sentence he would otherwise have received.
The object of the policy is to encourage useful assistance to the authorities for
the prevention, detection and prosecution of crime. Such assistance is recognized
whether the disclosure concerned crimes for which the defendant is being sen-
tenced or other unconnected crimes. The most important factors in determining
whether the assistance merits a discount usually include (1) the nature and extent
of the assistance; and (2) the likely consequences of the defendant giving assist-
ance, such as threats to his safety, more burdensome conditions of imprisonment,
and dangers to himself and his family after release from prison. Given the object
of the policy, there is no justification for drawing a curtain between pre-arrest
and post-arrest assistance and imposing a bar against recognition of the former.
However, the court should examine the circumstances relating to the pre-arrest as-
sistance before deciding whether and if so, the extent to which it should be taken
into account. (1) First, the defendant may have assisted the authorities out of good
motives. Such assistance will usually deserve full recognition in mitigation of sen-
tence. (2) Second, the defendant may have received payment or other consider-
ation for his assistance. Payment to police informers is a fact of life. Although such
assistance may be recognized, the court should carefully consider whether the as-
sistance in the case in question deserves any reduction, and if so the amount. The
more substantial the payment, the less sympathetic should the court be. (3) Third,
the court should be wary of a defendant who engages or is intending to engage
in criminal activities and who gives assistance in order to build up credit for him-
self to be used later if apprehended. Although there is no bar to recognition of
such assistance, the court should proceed with considerable circumspection. It is
undesirable to take an approach which has the effect of encouraging potential de-
fendants trying to build up goodwill in this way. The Court of Appeal is well placed
to consider the range of reduction of sentence for cooperation with the author-
ities. It has applied a usual discount of 40 per cent (including the one-third reduc-
tion for guilty plea) for a defendant who provided assistance to authorities without
giving evidence; and where the defendant has also given truthful and material
evidence, the Court of Appeal has given a usual discount of 50 per cent (see, eg,
HKSAR v Chui Tak Man [2014] 4 HKLRD 663). If the assistance provided is such as
to place the defendant in the supergrass category, the discount may be as high as
two-thirds. The defendant who gives valuable evidence in two separate trials may
also expect to receive a discount in sentence of more than 50 per cent: HKSAR v
Ng Tsz Wai, Jeans [2010] 3 HKC 488.
Before treating a defendant as a supergrass, the court will look for significant and
substantial assistance which has assisted the authorities in relation to grave crimes, and
although the risk of harm is not a prerequisite the greater the threat the more likely it
will be that a defendant will qualify as a supergrass: HKSAR v Cheung Chi Yuen [2018]
HKCA 276 (CACC 288/2015, [2018] HKEC 1239). Even if not a supergrass, an extra
482
discount may be appropriate “to reward him for not succumbing to the intimidatory
behavior that targeted him”, per McWalters JA, at [36].
Although an additional discount was sometimes extended to a defendant who, when
arrested for one offence, then confessed to other offences not under investigation,
the one-third discount is now invariably treated as the maximum discount: HKSAR v
Ngo Van Nam [2016] 5 HKLRD 1, at [38]-[41].
In HKSAR v Herrera Jhorman [2013] 1 HKC 119, a defendant who pleaded guilty to
drugs offences and provided a witness statement to the police which prompted his
co-accused, against whom he had been prepared to testify, to plead guilty. The de-
fendant received a discount of about 40 per cent, but was denied a higher discount as
he had not given truthful and useful evidence for the prosecution at trial. Although he
claimed to have fears for his safety in custody, the court observed that “the Corrective
Services Department would afford the applicant appropriate protection”. In HKSAR
v Yau Kwok Kin (CACC 69/2016, 1 September 2016), a defendant who provided a
witness statement which enabled the prosecution to charge the mastermind of a cross-
border trafficking operation was awarded a discount of 45 per cent.
A defendant can only expect to receive a discount for actual assistance rendered: R
v Wong Kam-Chiu [1993] 2 HKC 700. A mere promise to provide assistance is irrele-
vant: Attorney General v Chan Fat Keung [1988] 1 HKLR 570. If the offer of the de-
fendant to assist does not need to be acted upon because a confederate pleads guilty,
he is still entitled to credit for his willingness to testify as this may well have prompted
the plea: HKSAR v Ng Chi Ming (CACC 570/2001, [2002] HKEC 366); HKSAR v Kay
Sik Hong, Billy [2014] 1 HKLRD 812; HKSAR v Lo Sze Tung, Stephanie [2018] HKCA 421
(CACC 97/2017, [2018] CHKEC 572). Like considerations apply if the confederate
dies: R v Tam Yiu Chung (CACC 84/1991). If a defendant helps the authorities to in-
vestigate crime but this, in the event, comes to nothing, through no fault of his own, a
discount may still be appropriate: HKSAR v Maningas (CACC 278/2011, [2012] HKEC
789). In such circumstances, a discount of 40-45 per cent is appropriate: HKSAR v
Cheng Weiguang [2018] HKCA 274 (CACC 97/2017, [2018] CHKEC 572).
If a defendant provides tip-offs to the police for which he is paid, and is subse-
quently found to have been participating in the drugs trade at the same time as he was
a participating informer, he may receive no special discount, notwithstanding that his
tip-offs led to convictions: HKSAR v Y [2019] HKCA 456.
If the defendant only supplies the authorities with hearsay information about
matters already being investigated, this will not assist him as mitigation: R v Chan
Koon Wing (CACC 391/1989, 6 February 1991). Absent culpable inaction by the au-
thorities, the mere provision of information which leads nowhere will not avail a
defendant: HKSAR v W [2013] 4 HKLRD 369. The defendant who simply makes ad-
missions to the police after his arrest cannot expect to receive an additional discount
after a guilty plea: HKSAR v Chan Kwong Chiu (CACC 299/2008, 4 March 2009). If the
defendant confesses his guilt to the police and implicates others in his cautioned state-
ment he will only receive the usual one-third discount when he pleads guilty: HKSAR
v Chung Kin Wah (CACC 700/1996, 26 June 1997). Before the one-third discount is
increased, the defendant must provide “fruitful assistance”: HKSAR v Wong Yat Wah
(CACC 234/1997, 05 December 1997).
In HKSAR v Lo Sze Tung, Stephanie [2018] HKCA 421 (CACC 97/2017, [2018]
CHKEC 572), it was said that a defendant who has made a genuine attempt to assist
the authorities, which has been helpful but is of no particular value, can hope for a
discount in the range of 33.3 per cent to 40 per cent, following a guilty plea, with 40
per cent being the “high watermark” for assistance which is limited and unfruitful
[48]-[51]. The 40 per cent discount is normally reserved for defendants who have
given valuable or tangible assistance to the police but have not been required to
testify, typically because there has been a guilty plea: HKSAR v Tsang Ka Wing [2017]
5 HKLRD 799. In HKSAR v Godson Ugochukwu Okoro [2019] HKCA 158 (CACC 222/
2015), a defendant who made a genuine attempt to assist the authorities by pro-
viding useful information which, while accurate, was not fruitful and resulted in no
further action being taken, received a discount, after plea, of 38.5 per cent.
In HKSAR v Darlington [2016] 1 HKLRD 692, the Court of Appeal declined an invi-
tation to issue guideline percentages to be applied in cases where offenders assist the
483
authorities in controlled delivery operations, the reason being that the factors a judge
should consider varied from case to case. These factors include: (i) the nature and
effect of any voluntary participation; (ii) the nature of the assistance: was it successful
in bringing to justice people who would not otherwise have been brought to justice;
(iii) the degree or extent of any assistance provided; (iv)the degree of risk to which
the defendant has exposed himself or his family.
If the defendant assists the authorities subsequent to sentence, the appeal court
can review the sentence: R v Ng Hon Kit [1991] 1 HKLR 56. The value of the assistance
does not depend on when it is given, but upon its quality: Chan Wai Keung v R [1995]
1 HKCLR 123 (PC). If the assistance only materialises at a very late stage, perhaps
even after the appeal has been disposed of, the question of discount may be left to
the Executive to resolve. Wherever possible, however, the courts should deal with the
matter themselves: HKSAR v W [2004] 3 HKC 376. But there is no reason to assume
that “an appeal to the Executive in any particular case will not be appropriately ad-
dressed”: HKSAR v Yeung Kwai Kuen [2002] 3 HKC 395, per Stock JA.
Those who assist the authorities might require that this be kept confidential, as the
dangers of retribution are obvious. In some circumstances, therefore, information
about the assistance will be conveyed to the court in writing, and sometimes in the
judge’s room, pursuant to the ‘Sivan procedure’ (R v Sivan (1988) 10 Cr App (S) 282),
as applied in (R v Chan Kwong Hung [1996] 4 HKC 559). This procedure requires the
preparation of a letter by a law enforcement officer unconnected with the case con-
firming that he has examined all the facts and certifying the correctness of the facts re-
lating to the assistance, which is then considered in private. The use of this procedure
ensures that the nature of the assistance provided by the defendant is not aired in the
open court, and that the court proceeds on the basis of accurate information. It is the
duty of counsel on both sides to be fully acquainted with these procedures so as to
protect the identity of informers who require anonymity: HKSAR v Tse Ka Wah [1998]
1 HKLRD 925.
The law enforcement authority should endeavour to assist the court by providing
an assessment of the information or assistance. Since, for public interest reasons, the
assessment cannot normally be challenged by evidence or through a trial, the pros-
ecutor must ensure that any dispute is properly addressed before the court hearing.
The prosecutor has the duty of ensuring that any documentation prepared is “com-
pletely accurate, and can be relied on by the court”: HKSAR v Yeung Hoi Ting [2019]
3 HKLRD 516, HKCA 31, per Zervos JA [98]. If the document is taken into account,
the judge should simply say words in open court to the effect that account has been
taken of all the information about the defendant which has been provided. The pro-
cedures to be followed by a court dealing with mitigation concerning the assistance
rendered by a defendant were re-formulated in HKSAR v Yeung Hoi Ting (above),
at [100].
Involvement of informers and entrapment

5–103 A distinction is drawn between police conduct which incites an offence and under-
cover police investigation which is integral to their work: HKSAR v Heung Yu Nam
[1997] 3 HKC 632. If a police undercover agent or an informer has been involved in
bringing about the offence, this may provide mitigation in some cases, but not all: R v
Siu Yuen Fong [2002] 4 HKC 699.
If a court takes the view that an offence would not have been committed but
for the activities of an informer, it may, if it thinks it right to do so, mitigate the
penalty: HKSAR v Gonsalves (CACC 3/1997); R v Wu Man Hon (CACC 111/1993,
[1993] HKLY 358). In R v Beaumont (1987) 9 Cr App R (S) 342, CA (applied in R
v Chapman and Denton (1989) 11 Cr App R (S) 222, CA), entrapment was said to
be a substantial mitigating factor (R v Underhill (1979) 1 Cr App R (S) 270 was not
apparently cited). For a further illustration of the effect of entrapment as mitiga-
tion, see R v Mackey and Shaw (1993) 14 Cr App R (S) 53, CA. The use of test letters
to establish the guilt of a post office employee suspected of stealing mail is not a
mitigating factor: R v Ramen (1988) 10 Cr App R (S) 334. The same applies to test
purchases made by undercover police officers attempting to gather evidence of
484
dealing in drugs: see R v Springer [1999] 1 Cr App R (S) 217, CA; R v Mayeri [1999]
1 Cr App R (S) 304, CA.
If an accused has been persuaded to commit the offence by the authorities, this
may be relied upon in mitigation of sentence: R v Sang (1970) 69 Cr App R 282.
However, a distinction must be drawn between police incitement that results in the
commission of an offence that would not otherwise have occurred, and the facili-
tation by police of an offence that would have occurred in any event: R v Liu Chun
Fai [1987] HKLR 1032. It is only in the latter situation that entrapment comes into
its own in mitigation of sentence: R v Siu Yuen Fong [2002] 4 HKC 699. Even then,
entrapment can be disregarded if the crime is grave, as where it involves “the consid-
erable abuse of power by a corrupt and very senior official of a foreign government
who occupied a position of great trust”: Secretary for Justice v Musa [2001] 1 HKC
14. What the court can properly ask itself in this exercise “is whether there was any
real likelihood that the appellant was encouraged to commit an offence, which he
would not otherwise have committed”: HKSAR v Kai Chi-Chung (CACC 259/1997, 5
May 1998).
L. Suspended Sentences of Imprisonment

(1) Legislation
Criminal Procedure Ordinance (Cap 221), 109B
Suspended sentences of imprisonment

109B.—(1) A court which passes a sentence of imprisonment for a term of not more 5–104
than 2 years for an offence, other than an excepted offence, may order that the sen-
tence shall not take effect unless, during a period specified in the order being not less
than 1 year nor more than 3 years from the date of the order, the offender commits
in Hong Kong another offence punishable with imprisonment and thereafter a court
having power to do so orders under s 109C that the original sentence shall take effect.
(2) A court which passes a suspended sentence on any person for an offence shall not
make a probation order in his case in respect of another offence of which he is convicted
by or before the court or for which he is dealt with by the court.
(3) On passing a suspended sentence the court—
(a) may impose such conditions as it thinks fit;
(b) shall explain to the offender in ordinary language his liability under
section 109C if during the operational period he commits an offence
punishable with imprisonment or breaks any condition imposed under
paragraph (a).
(4) If a court has passed a suspended sentence on any person, and that person is sub-
sequently sentenced to detention in a training centre, he shall cease to be liable to be
dealt with in respect of the suspended sentence unless the subsequent sentence or any
conviction or finding on which it was passed is quashed on appeal.
(5) Subject to any provision to the contrary contained in this or any other Ordinance—
(a) a suspended sentence which has not taken effect under section 109C shall be
treated as a sentence of imprisonment for the purposes of all Ordinances ex-
cept any Ordinance which provides for disqualification for or loss of office,
or forfeiture of pensions, of persons sentenced to imprisonment; and
(b) where a suspended sentence has taken effect under section 109C, the of-
fender shall be treated for the purposes of the said excepted Ordinances as
having been convicted on the ordinary date on which the period allowed for
making an appeal against an order under section 109C expires or, if such an
appeal is made, the date on which it is finally disposed of or abandoned or
fails for non-prosecution.
Criminal Procedure Ordinance (Cap 221), 109C

Power of court on conviction of further offence to deal with suspended sentence
109C.—(1) If an offender is convicted of an offence punishable with imprisonment 5–105
committed during the operational period of a suspended sentence or if, during such
485
period, he breaks a condition imposed under section 109B(3)(a) and either he is so con-
victed by or before a court having power under section 109D to deal with him in respect
of the suspended sentence or he subsequently appears or is brought before such a court,
then, unless the sentence has already taken effect, that court shall consider his case and
deal with him by one of the following methods—
(a) the court may order that the suspended sentence shall take effect with the
original term unaltered;
(b) it may order that the sentence shall take effect with the substitution of a
greater or lesser term for the original term;
(c) it may by order vary the original order under section 109B(1) by substituting
for the period specified therein a period expiring not later than 3 years from
the date of the variation; or
(d) it may make no order with respect to the suspended sentence,
and a court shall make an order under paragraph (a) of this subsection unless the court
is of opinion that it would be unjust to do so in view of all the circumstances which have
arisen since the suspended sentence was passed, including the facts of the subsequent
offence, and where it is of that opinion the court shall state its reasons.
(2) Where a court orders that a suspended sentence shall take effect, with or without
any variation of the original term, the term of such sentence shall commence on the
expiration of another term of imprisonment passed on the offender by that or another
court, unless the court is of opinion that, by reason of special circumstances, the sen-
tence should take effect immediately.
(3) In proceedings for dealing with an offender in respect of a suspended sentence
which take place before the Court of First Instance any question whether the offender
has been convicted of an offence punishable with imprisonment committed during the
operational period of the suspended sentence shall be determined by the court and not
by the verdict of a jury.
(4) Where a court deals with an offender under this section in respect of a suspended
sentence the clerk of the court shall notify the clerk of the court which passed the sen-
tence of the method adopted.
(5) Where on consideration of the case of an offender a court makes no order with
respect to a suspended sentence, the clerk of the court shall record that fact.
(6) For the purposes of any Ordinance conferring rights of appeal in criminal cases
any such order made by a court shall be treated as a sentence passed on the offender by
that court for the offence which the suspended sentence was passed.
Criminal Procedure Ordinance (Cap 221), 109D
Court by which suspended sentence is to be dealt with
5–106 109D.—(1) An offender may be dealt with in respect of a suspended sentence by any
court before which he appears or is brought.
(2) Where an offender is convicted by a magistrate of an offence punishable with
imprisonment and the magistrate is satisfied that the offence was committed during the
operational period of a suspended sentence passed by the Court of First Instance or the
District Court—
(a) the magistrate may, if he thinks fit, commit him in custody or on bail to the
court having power to deal with him in respect of the suspended sentence;
and
(b) if he does not, shall give written notice of the conviction to the clerk of the
court by which the suspended sentence was passed.
(3) The court to which a magistrate commits an offender under subsection (2) shall
be the court by which the suspended sentence was passed, except that the magistrate
may commit him to some other court if, having regard to the time when and the place
where he is likely to be dealt with in respect of the suspended sentence by the court by
which that sentence was passed, it would be more convenient that he should be dealt
with by that other court.
(4) For the purpose of this section and section 109E a suspended sentence passed on
an offender on appeal shall be treated as having been passed by the court by which he
was originally sentenced.
486
Criminal Procedure Ordinance (Cap 221), s 109E
Discovery of further offences
109E.—(1) If it appears to a judge, a District Judge or a magistrate that an offender 5–107
has been convicted in Hong Kong of an offence punishable with imprisonment com-
mitted during the operational period of a suspended sentence and that he has not been
dealt with in respect of the suspended sentence, the judge, District Judge or magistrate
may issue a summons requiring the offender to appear at the place and time specified
therein, or may, subject to the following provisions of this section, issue a warrant for
his arrest.
(2) A magistrate shall not issue a summons under this section except on information
and shall not issue a warrant under this section except on information in writing and
on oath.
(3) A summons or warrant issued under this section shall direct the offender to ap-
pear or to be brought before the court by which the suspended sentence was passed, but
if a warrant is so issued requiring him to be brought before the Court of First Instance
or the District Court and he cannot forthwith be brought before that court because that
court is not being held, the warrant shall have effect as if it directed him to be brought
before a magistrate and the magistrate shall commit him in custody or on bail to the
Court of First Instance or District Court.
Criminal Procedure Ordinance (Cap 221), s 109F
Breach of condition
109F.—If, during the operational period of a suspended sentence, an offender is 5–108
guilty of the breach of any condition imposed on him by a court under section 109B(3)
(a), he shall be liable to be dealt with as if, during such period, he had been convicted
of an offence punishable with imprisonment.
(2) Notes on suspended sentences of imprisonment

Sentences which may not be suspended
Excepted offences are set out in schedule 3 of the Criminal Procedure Ordinance. 5–109
They are manslaughter, rape or attempted rape, affray, or any offence contrary to sec-
tions 4, 5 or 6 of the Dangerous Drugs Ordinance, or any offence contrary to sections
10, 11, 12, 13, 14, 17, 19, 20, 21, 22, 23, 28, 29, 30, 36 or 42 of the Offences Against the
Person Ordinance, indecent assault or attempted indecent assault, any offence under
Part III of the Firearms and Ammunition Ordinance, robbery or aggravated burg-
lary, possession of an offensive weapon in a public place and possession of prohibited
weapons or certain offences relating to martial arts weapons.
There is no provision in Hong Kong for partly suspended sentences of imprison-
ment: R v Scales [1987] HKLR 583.
Suspension and “Exceptional circumstances”

Before any question of suspension arises, the court must consider the gravity of 5–110
the offence and the mitigating factors, and decide the length of the imprison-
ment: Secretary for Justice v Ip Hon Ming [2015] 1 HKC 143.
In considering a suspended sentence for an offence, “the courts must have re-
gard to all the circumstances of the commission of that offence and that of the
defendant in determining whether or not it is appropriate to exercise its power to
suspend the operation of the sentence of imprisonment”: Secretary for Justice v Wade
Ian Francis [2016] 3 HKC 274, per Lunn VP. However, in respect of certain offences
of particular concern, the courts have said that there must be “exceptional circum-
stances” to justify suspension; into this category fall such offences as conspiracy to
defraud the Housing Department (see HKSAR v Cheung Suet Ting [2010] 6 HKC
249), bribery involving advantages being offered to a government officer (see
HKSAR v Yuen Chi Ming (HCMA 56/2001, [2001] HKLRD (Yrbk) 389)), forgery
and using a false instrument (see HKSAR v Leung Ping Nam [2007] 5 HKC 413),
487
outraging public decency (see HKSAR v Kim Eung-who [2015] 4 HKC 293), corrup-
tion (see Secretary for Justice v Lau Cho Man (CAAR 8/1997, [1997] HKLY 337), do-
mestic premises burglary (see Att-Gen v Lo Ching-fai [1996] 1 HKC 747), employing
a person not lawfully employable (see HKSAR v Leung Chun Sang (HCMA 74/2002,
[2002] HKEC 1108), conspiracy to defraud (see HKSAR v Cheng Kelly Kit-yin [2014]
4 HKLRD 34), and money laundering (see Secretary for Justice v Siu Yun Yee [2017]
3 HKLRD 678). Given the large number of cases requiring “exceptional circum-
stances” as a pre-condition of suspension, there is clearly a duty on counsel, par-
ticularly prosecuting counsel, to be in a position to advise the court if a particular
case is within this category.
To be “exceptional”, a circumstance “need not be unique, or unprecedented, or
very rare; but it cannot be one that is regularly, or routinely or normally encoun-
tered”: Attorney General’s Reference (No 53 of 1998) (Edward Kelly) [1999] 2 Cr App R
36. The term “exceptional circumstances” is wide enough to entitle the court to take
account of all the relevant circumstances surrounding the offence, the offender and
the background: R v Lowery [1993] Crim LR 225.
A single factor might constitute an exceptional circumstance, or exceptional cir-
cumstances might arise from a combination of factors: R v Rahman [2006] 1 Cr App R
(S) 404; Attorney General v Yeung Kwong Chi [1989] 1 HKLR 266. A guilty plea is not
an exceptional circumstance: Attorney General v Chan Sik Ming [1996] 2 HKCLR 154.
Whether on their own or in combination, good character, youth and an early plea do
not justify suspension: R v Okinikan (1993) 14 Cr App R (S) 453; Secretary for Justice
v Mong Hong Ming [2009] 3 HKC 481. The making of restitution does not justify a
suspended sentence: Secretary for Justice v Hui Siu Man [1999] 2 HKLRD 236. Family
hardship will not usually attract a suspended sentence: R v Smith [2002] 1 Cr App R
(S) 258.
A serious delay in bringing the defendant to trial may, in some situations, amount
to exceptional circumstances justifying a suspended sentence: HKSAR v Chiu Peng,
Richard [2002] 1 HKC 401; Secretary for Justice v Hui Siu Man [1999] 2 HKLRD 236.
Serious health problems are also capable of being exceptional circumstances: R v Ullah
Khan (1994) 15 Cr App R (S) 320. If a defendant can pray in aid humanitarian consid-
erations which are substantial” a suspension of sentence may be appropriate: Att-Gen
v Lam Ping Chun [1989] 1 HKLR 161.
Length of sentence
5–111 The maximum prison sentence that can be suspended is two years: section 109B(1)
of the Criminal Procedure Ordinance. The court should determine the length of a
sentence before deciding whether to suspend it: the fact that a sentence is to be sus-
pended does not justify passing a sentence longer than would be imposed if the sen-
tence were to be served immediately: see R v Mah-Wing (1983) 5 Cr App R (S) 347, CA;
R v Kirk (1984) 6 Cr App R (S) 231, CA; R v Raynsford (1988) 10 Cr App R (S) 416, CA;
and Att-Gen v Lai Kwong Loi (CAAR 15/1980, 27 February 1981).
Treatment of time spent in custody on remand

5–112 Where an offender has spent time in custody on remand prior to the passing of a
suspended sentence, and no allowance for that time is made by the court which im-
posed the sentence, the court who deals with the offender following a conviction for a
further offence committed during the operational period of the sentence should take
account thereof: see R v Tucker (1992) 13 Cr App R (S) 15, CA.
Where a court exercising an appellate jurisdiction imposes a suspended sentence
in substitution for an effective sentence, it may make any appropriate allowance in
determining the length of the suspended sentence for any time in custody under the
original sentence pending the appeal: see Practice Direction (Suspended Sentences), 54
Cr App R 208.
Where an offender has spent a period in custody on remand which is equivalent
to the term of imprisonment which would be appropriate to the offence, so that if
the offender received a sentence of that length he would be immediately released,
488
the court should not pass a suspended sentence: see R v McCabe (1988) 10 Cr App R
(S) 134, CA, R v Peppard (1990-91) 12 Cr App R (S) 88, CA, and R v Helder (1992) 13
Consecutive terms
Where a number of sentences are imposed on the same occasion and suspended, 5–113
the court that imposes them must decide whether they will run concurrently or con-
secutively: see R v Wilkinson (1970) 54 Cr App R 437, CA. However under section
109B(1) of the Criminal Procedure Ordinance (Cap 221) the maximum term of
imprisonment that can be suspended is two years. Therefore if the totality of con-
secutive sentences exceeds two years, there is no discretionary power to suspend the
sentence: R v Coleman (1969) 53 Cr App R 445.
Where an offender who is already subject to a suspended sentence receives an-
other suspended sentence on a different occasion, the court which imposes the
second suspended sentence should not make any order relating to whether the sen-
tences should take effect, if activated, either concurrently or consecutively: this is
the responsibility of the court which orders them to take effect: R v Blakeway (1969)
53 Cr App R 498, CA. It is not good sentencing practice to allow an offender to
accumulate a number of separate suspended sentences so that he becomes liable
to the activation of a substantial aggregate sentence (see R v Au Chi Kwan ([1987]
HKLY 336)).
If a defendant commits a fresh offence during the period of suspension, the
proper approach is to sentence him for the fresh offence, and the suspended sen-
tence, in the absence of any exceptional circumstance, will be activated and be
served consecutively to the sentence for the fresh offence, otherwise the suspended
sentence will lose its meaning and effect: Secretary for Justice v Chan Ka Wah [2008]
4 HKC 532.
Combined with effective custodial sentence

As a general principle, it is desirable to avoid a situation in which an offender is 5–114
simultaneously serving a sentence of imprisonment and is subject to a suspended sen-
tence. It is accordingly wrong in principle to impose an immediate sentence of impris-
onment at the same time as a suspended sentence, as in Att-Genl v Tse On [1986] HKLR
215, or to impose a suspended sentence and at the same time activate an existing sus-
pended sentence: R v Jones (1983) 5 Cr App R (S) 324, CA; or to impose a suspended
sentence on an offender who is already serving an immediate sentence: R v Butlers; R
v Fitzgerald (1971) 55 Cr App R 515, CA.
Where an offender is subject to an existing suspended sentence, it is wrong to
impose an immediate sentence without ordering the suspended sentence to take
effect, where that course is open to the court: R v Goodlad (1973) 57 Cr App R 717,
CA, but see Att-Gen v Li Hop Ming (CAAR 52/92) for a rare case where the Court of
Appeal felt that it was within the bounds of the court’s discretion to do so. It is not
necessarily wrong to impose a sentence of immediate imprisonment on an offender
who is subject to an existing suspended sentence, without activating the suspended
sentence, if the power to activate the suspended sentence does not arise: see R v
Sorrell (1971) 55 Cr App R 573, CA; R v Bainbridge 1 Cr App R (S) 88, CA.
Combined with non-custodial measure

A probation order made on the same occasion as a suspended sentence is im- 5–115
posed in breach of the statutory prohibition in section 109B(2) (above) is invalid
and cannot be circumvented by passing a general sentence and not allocating the
suspended sentence and the probation order to particular offences: Att-Gen v Yau
Chun Fong [1993] 1 HKCLR 42. This does not apply at a second separate hearing
when a probation order can be made for another offence: R v Tarry [1970] 2 QB 560.
A fine can be imposed at the same time as a suspended sentence is passed: R v Leigh
(1969) 54 Cr App R 169.
489
In R v Starie (1979) 1 Cr App R (S) 172 it was held that although not prohibited by
law, it was bad sentencing practice to pass a non-custodial sentence and a suspended
prison sentence. If the court did combine a community service order with a suspended
prison sentence, a court dealing with a breach of the community service order was
limited in dealing with the offender.
Activation – general principles

5–116 Section 109C(1)(d) of the Criminal Procedure Ordinance (Cap 221) requires the
court dealing with a suspended sentence to activate the suspended sentence in full
unless it will be unjust to do so. Suspended sentences must be taken seriously: Li Kim
Wai v R [1980] HKLR 833. In deciding whether activation will be unjust, the court
must look “at all of the circumstances which have arisen since the suspended sentence
was passed including factors of the subsequent offence”: R v Ho Miu Yuk (CACC 2/
1989). The principal reason for not activating a suspended sentence is the relative
triviality of the subsequent offence: see R v Moylan 53 Cr App R 590, CA; R v Law Ho
Kwan [1988] HKLR 260 and for an illustration, see R v Abrams 2 Cr App R (S) 10, CA.
The fact that the later offence is of a different kind from the offence for which the sus-
pended sentence was imposed is not in itself a ground for non-activation: Siu Man Wei
v R (CACC 767/1981); R v Saunders 54 Cr App R 247, CA. This principle was restated
in R v Clitheroe (1987) 9 Cr App R (S) 159, CA, where two decisions (R v O’Donnell 4
Cr App R (S) 96, CA; R v Prince [1982] Crim L R 321, DC), which appeared to adopt a
different approach, were disapproved: see also R v Wells (1987) 9 Cr App R (S) 68, CA.
If the offences are identical, the first offence may be treated as an aggravating factor: R
v Ho Tak Mui [1991] 2 HKLR 637.
If necessary, a court will be justified in seeking to ascertain the facts of the earlier
suspended sentence: HKSAR v Nyamdoo Zoljargal (HCMA 157/2014, [2014] HKEC
1021). The correctness of the earlier sentence must, however, be accepted: R v Barton
[1974] Crim LR 555.
Activating a suspended sentence does not amount to passing a sentence: R v Pau
Chi Keung [1987] HKLR 1148 CA. Where the later offence is significantly less serious
than the offence for which the suspended sentence was passed, but not so trivial that
it would be unjust to activate the suspended sentence at all, it may be appropriate to
activate the suspended sentence with the term reduced: see R v Cline (1979) 1 Cr App
R (S) 40, CA and R v Joshua (1980) 2 Cr App R (S) 287, CA.
In R v Fitton (1989) 11 Cr App R (S) 350, the English Court of Appeal said that it
should not be thought that because a person had reached the end, or close to the end,
of an operational period, the suspended sentence would be automatically reduced.
The legislature had intended that if a further offence was committed during the oper-
ational period then the whole of the sentence should normally be activated. But it was
a matter for the discretion of the courts: R v Li Yuk Ching [1990] 2 HKLR 132, CA. See
also R v Chuni [2000] 2 Cr App R (S) 64, CA.
The activation of a suspended sentence is not subject to the jurisdictional restric-
tions imposed on both the Magistrates’ Court and the District Court if the totality of
the sentences exceeds the maximum of three years and seven years imprisonment,
respectively: R v Pau Chi Keung [1987] HKLR 1148, CA, overruling R v Ho Bing Chun
[1977] HKLR 68.
Although in HKSAR v Ali Amjad (HCMA 689/2005), the Court of First Instance
held that the relevant date which would determine whether a suspended sentence
could be activated was not the date on which the fresh offence was committed but
the date upon which the conviction for the new offence was recorded, the Court of
Appeal in HKSAR v Lee Sing Wai, Stephen [2006] 3 HKLRD 1 made clear that this
approach was erroneous. The legislation was designed to target the date of the com-
mission of the fresh offence for the purposes of deciding whether there had been a
breach of the suspended sentence.
The relevant sections in the Criminal Procedure Ordinance (Cap 221), namely,
sections 109B(1), 109C(1) and 109C(2), plainly target the date of the commission of
490
the fresh offence for the purposes of deciding whether there has been a breach of the
suspended sentence: HKSAR v Lee Sing Wai [2006] 3 HKLRD 1.
In HKSAR v Tamang Gopal Prasad [2008] 2 HKLRD 68, the first court sentenced the
defendant for common assault and in doing so activated two months of a 4-month
suspended sentence for a previous charge of criminal intimidation. Subsequently, the
defendant was convicted of wounding and, in sentencing, the second court purported
to activate the outstanding balance of two months of suspended sentence. It was held
that the second court had no power to activate the balance of the suspended sen-
tence. On a proper construction of and pursuant to s 109C(1)(b) of the Criminal
Procedure Ordinance, the first activation was intended as a single exercise of dis-
cretion, resulting in the final disposal of the suspended sentence. Thus, there was
nothing left to activate.
Activation – relationship of sentences

If the sentence for the latest offence is an immediate sentence of imprisonment, it 5–117
should be commensurate with the seriousness of the offence for which it is imposed: R
v Beacock (1979) 1 Cr App R (S) 198, CA. Having determined the sentence for the
latest offence, the court should consider whether to activate the suspended sentence
or to take one of the other courses permitted by section 109B(1). If it decides to acti-
vate the suspended sentence, it should normally order the suspended sentence to run
consecutively to any new immediate sentence: Secretary for Justice v Chan Ka Wah [2008]
4 HKC 532. Where the court imposes an immediate sentence for the latest offence, it
should always activate the suspended sentence, rather than leave it to hang over the
offender on his release: R v Goodlad (1973) 57 Cr App R 717, CA; R v Baker (1982) 4
Cr App R (S) 231, CA. It is wrong, therefore, to impose an immediate sentence for
the latest offence and extend the operational period of the suspended sentence: R v
Crawley (1984) 6 Cr App R (S) 327, CA; R v Harvey (1984) 6 Cr App R (S) 340 at 340.
Where a suspended sentence is ordered to run consecutively to any new sentence of
imprisonment, the court should consider whether the aggregate sentence is just and
appropriate; if the total is excessive, any necessary adjustment should be made, if ne-
cessary by ordering the suspended sentence to take effect with the term reduced: see
R v Bocskei (1970) 54 Cr App R 519, CA.
Multiple suspended sentences
Where an offender is subject to a number of suspended sentences passed on the 5–118
same occasion, they should be treated for the purposes of activation as a single term: R
v Gall (1970) 54 Cr App R 292, CA. When the offender is subject to a number of sus-
pended sentences imposed on different occasions, the court activating the sentences
has authority to decide whether they will run concurrently with each other or con-
secutively: R v Blakeway (1969) 53 Cr App R 498, CA. It is not desirable that numerous
suspended sentences should be allowed to accumulate; this can cause totality prob-
lems: R v Au Chi Kwan [1987] HKLY 336.
M. Life Imprisonment
Summary
In Att-Gen’s Reference (No 32 of 1996) (R v Whittaker) [1997] 1 Cr App R (S) 261 CA, 5–119
it was said that there were two pre-conditions for the imposition of a discretionary
life sentence. First, the offence must be very serious. Second, there should be good
grounds for believing that the offender might remain a serious danger to the public
for a period that could not be reliably estimated at the date of the sentence. A dis-
cretionary life sentence is justified where: (1) the offence is in itself grave enough
to require a very long sentence, (2) it appears from the nature of the offence or the
defendant’s history that he is a person of unstable character likely to commit such
an offence in future and (3) if the offence is committed, the consequences to others
491
may be specially injurious, as in the case of a sexual offence or a crime of violence: see
HKSAR v Tsui Chu Tin (CACC 433/2003, [2005] HKEC 506).
By “serious danger” the court has in mind particularly serious offences of violence
and serious sexual offences. The grounds upon which such a belief is based would
often relate to the mental condition of the offender, but the crucial question was
whether on all the facts it appears that the offender is likely to represent a serious
danger to the public for an indeterminate time: see also R v Hodgson (1968) 52 Cr
App R 113, CA, and R v Wilkinson (1983) 5 Cr App R (S) 105, CA, in which a stricter
criterion in relation to the mental condition of the offender was laid down.
Whilst there is an interrelationship between the gravity of the offence, the risk of
reoffending and the gravity of any such further offending should it occur, in that the
greater the risk of further offences and the more grave such offending might be,
the less emphasis the court might place on the gravity of the instant offence, there
are, however, no grounds for doubting the indispensability of the first pre-condition,
which should not be watered down: R v Chapman [2000] 1 Cr App R 77, CA. In Hong
Kong, the Court of Appeal considered the criteria for imposing a discretionary life
sentence in R v So Ching Kwan [1993] 1 HKCLR 156 and R v Cheung Hing Biu [1984]
HKLR 87.
The use of the discretionary life sentence is quite different from the use of the
determinate sentence of imprisonment, which is governed by principles intended to
result in a sentence that reflects the culpability of the offender. In a case where the
offender does not satisfy the criterion of dangerousness, a sentence of life imprison-
ment will not normally be upheld, however grave the crime may be: the appropriate
sentence will be a determinate sentence of imprisonment, possibly of considerable
length. Similarly, if the criterion of dangerousness is satisfied, a sentence of life im-
prisonment may be upheld in a case in which the gravity of the offence was such that a
long sentence of imprisonment would not necessarily have been justified.
(2) Notes on life imprisonment

5–120 A discretionary life sentence is justified if the defendant is likely to “remain a ser-
ious danger to the public for a period which cannot be reliably estimated at the date
of sentence”: HKSAR v Chan Li Fat [2010] 4 HKLRD 109.
An indeterminate sentence should not lightly be imposed and is only justified when
certain criteria are fulfilled. However, it is not necessary for all the criteria in R v
Hodgson (1968) 52 Cr App R 113 (that: (a) the offences are grave enough to require
a very long sentence; (b) from the nature of the offences or from the defendant’s his-
tory, he is unstable and likely to commit similar offences in the future; and (c) if similar
offences are committed, the consequences may be injurious, especially in cases of a
sexual or violent nature), to be present before an indeterminate sentence is justified.
The gravity of the offences and injuries to the victims may not always be important fac-
tors to consider as an indeterminate sentence may well be appropriate for less serious
offences where there is evidence that the defendant’s condition is not treatable and he
represents a serious danger to the public for an indefinite period. There is, however, a
need to ascertain from the nature of the offences or from the defendant’s history that
he is unstable and likely to commit similar offences in the future.
Although a defendant’s plea, remorse and cooperation with the police have little
relevance once it is determined that an indeterminate sentence is justified, the fact
that he has a clear record should be taken into consideration where possible. If an ac-
cused, despite having been convicted and sentenced on previous occasions, continues
to commit an offence, he is more likely than otherwise to commit further offences in
the future. The danger to the society is thus greater: HKSAR v Hui Mak Kwan [2003]
4 HKC 443, HKSAR v Cheung Lai Man [2004] 2 HKLRD 473, HKSAR v Liu Chun Yip
[2008] 3 HKC 70.
The gravity of the immediate offence

5–121 In R v Hodgson (1968) 52 Cr App R 113, CA, adopted in Hong Kong by the Full
Court in R v Fong Lung Fai [1968] HKLR 249, it was said that the first criterion for the
492
imposition of a life sentence was that the offence itself was grave enough to justify a
very long sentence. In subsequent decisions, the court moved away from this position,
holding that such a sentence might be imposed if the criterion of dangerousness was
satisfied, for an offence which would not otherwise have necessarily justified a long
sentence: see R v Blogg (1981) 3 Cr App R (S) 114; R v Allen (1987) 9 Cr App R (S) 169;
Att-Gen’s Reference (No 34 of 1992) (R v Oxford) (1994) 15 Cr App R (S) 167; R v Parker
[1997] 1 Cr App R (S) 259, CA; and R v Willoughby [1999] 2 Cr App R (S) 18, CA.
However, Att-Gen’s Reference (No 32 of 1996) (R v Whittaker) and R v Chapman [2000] 1 Cr
App R (S) 377 marked a return to a stricter view. See also R v Kelleci [1995] 2 HKCLR
79; R v Cheung Hing Biu [1984] HKLR 87; and HKSAR v Cheung Lai Man [2004] 2
HKLRD 473.
Future dangerousness
The crucial question is whether an offender poses a serious danger to the public 5–122
for an indeterminate time: HKSAR v Tsang Man Wai, Raymond [2017] 4 HKC 419. The
English Court of Appeal has indicated that the fact that the offender has committed
a very grave offence does not of itself normally satisfy this criterion without more: see
R v Picker [1970] 2 QB 161; 54 Cr App R 330; R v Thornton (1994) 15 Cr App R (S) 51.
The fact that the offender has persistently committed offences over a long period is
also not necessarily sufficient to satisfy the requirement: R v Pither (1979) 1 Cr App R
(S) 209, CA; R v Wilkinson (1983) 5 Cr App R (S) 105, CA.
The finding that the offender is a person who satisfies this criterion will often
be based on medical evidence, although it is not necessary to show that the of-
fender is suffering from mental illness or any other mental condition recognised
by law: see R v Thornett (1979) 1 Cr App R (S) 1, CA; R v Herpels (1979) 1 Cr App R
(S) 48, CA; R v Scott (1981) 3 Cr App R (S) 334, CA; R v Williams (RA) (1986) 8 Cr
App R (S) 480, CA, where the application of the guidelines in R v Billam (1986) 82
Cr App R 347, CA, to the use of life imprisonment in cases of rape, was considered.
But even without evidence of medical instability, the Hong Kong Court of Appeal
found in R v So Ching-kwan [1993] 1 HKCLR 156 that life imprisonment was ap-
propriate as there was a real risk of repetition of the crime in question on release.
The duty of the courts to protect the public weighed heavily with the court in R v
Ho Tung Shing [1994] 2 HKC 404.
A persistent sexual offender who repeatedly commits serious sexual offences may
satisfy the criterion, whether or not there is a diagnosis of mental disorder or in-
stability: see Att-Gen’s Reference (No 76 of 1996) (R v Baker) [1997] 1 Cr App R (S) 81,
CA (violent rape); R v Hatch [1997] 1 Cr App R (S) 22, CA (persistent sexual offences
against boys).
In R v Easterbrook (1990-91) 12 Cr App R (S) 331, CA, a life sentence was upheld
on a man aged 59, who had taken part in an armed robbery in which shots were ex-
changed with the police. It was accepted that although the appellant had nothing
wrong with his mind in the medical sense, he was a skilful and dangerous criminal; a
life sentence was needed to indicate how severe the punishment ought to be for a man
who was willing to risk his own life and the lives of others to gain large sums of money.
Easterbrook was not considered in R v Chapman (1994) 15 Cr App R (S) 844, where the
English Court of Appeal held that a sentence of life imprisonment passed in broadly
similar circumstances was inappropriate.
A life sentence should not be passed if it appears that a determinate sentence pro-
portionate to the gravity of the offence will provide sufficient protection for the public
(eg where there is reason to believe that the offender’s aggressive tendencies may
die down with ageing, see R v Hercules (1980) 2 Cr App R (S) 156, CA). Where a sen-
tence of life imprisonment is necessary for the protection of the public, the sentence
is not objectionable on the ground that the indeterminate nature of the sentence
will hinder recovery, particularly where the chances of improvement are in any event
tenuous: see R v Watson (1979) 1 Cr App R (S) 344, CA.
In R v Cobb [2002] 1 Cr App R (S) 19, CA, it was emphasised that it was the duty
of the sentencing judge to determine whether the offender was so dangerous as
493
to warrant a discretionary life sentence. The fact that a psychiatric report stated
that the risk of future offences was medium to low did not prevent the judge from
concluding that the offender was likely to represent a serious danger to the public
for an indeterminate time. See also R v Powell and Horsford [2002] 1 Cr App R
(S) 48, CA.
In HKSAR v Liu Chun Yip [2008] 3 HKC 70, the defendant represented a po-
tential long-term danger to the community, and concurrent life sentences were
imposed, with a minimum term of 16 years, after convictions for two offences of
manslaughter.
Injurious consequences limited to particular individuals

5–123 A life sentence may be imposed on the basis of a danger to a particular individual
or group of individuals: see R v Allen (1987) 9 Cr App R (S) 169; R v Costelloe (1987)
54 Cr App R 172, CA.
Duty of judge to alert counsel before imposing life sentence

5–124 Where a judge is contemplating the imposition of a sentence of life imprisonment,
he should inform counsel and allow him to deal with the matter specifically: R v Pang
Chun Wai [1994] 1 HKCLR 137.
Offenders eligible for admission to hospital

5–125 See §5–444, below.
Concurrent determinate sentences

5–126 Where an offender who is sentenced to life imprisonment is also to be sentenced
for other offences for which life imprisonment is either not available or inappropriate,
concurrent determinate sentences should be passed, see R v Ngai Au Sang (HCMA
202/95).
Where determinate sentences are imposed, concurrently with a life sentence, they
should be tailored to the nature of the offences for which they are passed, and may
properly be ordered to run consecutively one to another if the usual principles re-
lating to consecutive sentences allow this course: see R v Daniels (1984) 6 Cr App R
(S) 8, CA. The court has to ask itself what, disregarding the term of life imprisonment
so far as possible, would be the correct term in totality for the various offences which
merit the determinate sentences: see R v Nugent (1984) 6 Cr App R (S) 93, CA. A court
should not impose disproportionate determinate sentences with the object of pre-
venting the offender’s release on supervision from the life sentence: see R v Middleton
(1981) 3 Cr App R (S) 273, CA.
Specified period of detention: Minimum term

5–127 Since 1997, section 67B of the Criminal Procedure Ordinance (Cap 221) requires
the sentencing judge to specify a minimum term that the offender must serve in re-
spect of a person sentenced to life imprisonment and the nature of this provision is
explained in HKSAR v Hui Chi Wai (No 2) [2003] 2 HKC 582.
The purpose of a sentence of discretionary life imprisonment with a minimum term
is twofold. The sentence is to protect the public and the minimum term serves the pur-
pose of retribution and deterrence. When setting the minimum term, the court must
have regard to the usual mitigating factors, as well as the possible remission for in-
dustry and good conduct. The minimum term is not subject to any remission granted
under rule 69 of the Prison Rules (Chapter 234), nor is it liable to be reviewed by the
Long-term Prison Sentences Review Board until six months before the term is due to
end. Hence the term specified is just the minimum period of detention, as opposed
to the minimum period subject to any deductions. It does not mean the accused will
be released upon expiry of the term, even if he no longer poses any danger to so-
ciety: HKSAR v Cheung Lai-man [2004] 2 HKLRD 473.
494
In determining the minimum term, a court should, in addition to what is required
by retribution and deterrence, also take into account “matters that led it to conclude
that an offender is likely to represent a danger to the public”: HKSAR v Tsang Man
Wai, Raymond [2017] 4 HKC 419.
(3) Legislation
Criminal Procedure Ordinance (Cap 221), s 67B
Minimum term to be specified in respect of person sentenced to life imprisonment

67B.—(1) When imposing a discretionary life sentence on a person for an offence, 5–128
the judge must specify as part of the sentence a minimum term that the person must
serve for the offence.
(2) If, when imposing an indeterminate sentence of imprisonment on a person for
an offence, the judge is of the opinion that there are matters relating to the person or
the offence which should be recorded for the purpose of reviewing the sentence in the
future, the judge must make a report in writing to the Chief Executive specifying those
matters.
Criminal Procedure Ordinance (Cap 221), s 67C

Determinations in respect of certain existing prisoners
67C.—(1) As soon as practicable after the commencement of this section and in any 5–129
event within 6 months after such commencement, the Secretary for Justice must, in
respect of each prescribed prisoner, apply to the court for a determination by a judge
under this section.
(2) If, within 6 months after the commencement of this section, the Secretary for
Justice does not make any application in respect of any prescribed prisoner under sub-
section (1), the prescribed prisoner may also apply to the court for a determination by
a judge under this section.
(3) Subject to subsection (4), the judge hearing an application under subsection (1)
or (2) must determine the minimum term that the prescribed prisoner must serve for
the relevant offence.
(4) Where the prescribed prisoner is serving the relevant sentence in respect of the
conviction of murder committed when he was under 18 years of age, then, subject to the
consent of the prescribed prisoner to the application of this subsection to him, the judge
has the discretion as to whether—
(a) to make a determination under subsection (3); or
(b) to determine instead that the relevant sentence be quashed, and be substi-
tuted by a sentence of imprisonment for a fixed term of such duration as the
judge considers appropriate.
(5) In making a determination under this section—
(a) subject to paragraph (b), the judge may take into account any material sub-
mitted to him by the Secretary for Justice or the prescribed prisoner that is,
in his opinion, relevant to the determination; and
(b) the judge must not take into account the previous recommendation or the
previous determination.
(6) Notwithstanding subsections (3) and (5), if the term determined under subsec-
tion (3) (whether or not also by application of subsection (4)(a)) as the minimum term
that the prescribed prisoner must serve for the relevant offence is longer than the term
specified as the minimum term to be served by the prescribed prisoner for the relevant
offence under the previous recommendation, the term so determined is, for all pur-
poses, to be treated as equal to the term so specified.
(7) If, when making a determination under subsection (3) (whether or not also by
application of subsection (4)(a)), the judge is of the opinion that there are any special
considerations or circumstances relating to the prescribed prisoner or the relevant of-
fence which should be taken into account in any future review of the relevant sentence,
the judge must make a report in writing to the Chief Executive specifying details of those
special considerations or circumstances.
495
Criminal Procedure Ordinance (Cap 221), s 67D
Further provisions relating to applications under section 67C and related procedural matters
5–130 67D.—(1) An application by the Secretary for Justice or a prescribed prisoner under
section 67C(1) or (2) is to be—
(a) in writing; and
(b) signed—
(i) in the case of an application under section 67C(1), by the Secretary for Justice
or any person holding one of the offices in the Department of Justice men-
tioned in Schedule 1 to the Legal Officers Ordinance (Cap 87); or
(ii) in the case of an application under section 67C(2), by the prescribed
prisoner.
(2) No charge is to be payable for any application under section 67C(1) or (2).
(3) As soon as practicable after the Secretary for Justice has made an application in
respect of a prescribed prisoner under section 67C(1), the Secretary for Justice must
serve a copy of the application on the prescribed prisoner.
(4) For the purposes of an application in respect of a prescribed prisoner under
section 67C(1) or (2), the Registrar must, as soon as practicable after a request in writing
has been made to him by the Secretary for Justice or the prescribed prisoner, as the case
may be, as the person by whom the application is to be made, deliver to the Secretary for
Justice or the prescribed prisoner, as the case may be—
(a) a copy of the record, if available, of the proceedings relating to the relevant
sentence; and
(b) a copy of any report concerning the prescribed prisoner which was before
the court which passed the relevant sentence.
(5) Where an application has been made in respect of a prescribed prisoner under
section 67C(1) or (2), the Secretary for Justice or the prescribed prisoner may apply to
a judge for—
(a) a copy of the record, if available, of the proceedings concerning the pre-
scribed prisoner (whether relating to the relevant offence or the relevant
sentence) or any part or parts of the record; and
(b) a copy of any document in the possession of the Registrar, and if the judge
is satisfied that it is necessary and practicable to do so, the judge must direct
the Registrar to deliver the copy to both the Secretary for Justice and the
prescribed prisoner.
(6) Without prejudice to section 123, all proceedings conducted before a judge for
the purposes of an application under section 67C(1) or (2) (other than any proceedings
conducted before a judge for the purposes of an application under subsection (5)) must
be held in open court.
Criminal Procedure Ordinance (Cap 221), s 67E

Sections 67C and 67D no longer to apply if prescribed prisoners cease to serve relevant sentence
5–131 67E.—Where a prescribed prisoner ceases to serve the relevant sentence at any time
after the commencement of section 67C but before any determination is made in re-
spect of the prescribed prisoner under that section—
(a) sections 67C and 67D then cease to apply to the prescribed prisoner; and
(b) without limiting the generality of paragraph (a), any proceedings relating to
the prescribed prisoner under section 67C and any appeal or other proceed-
ings arising from or preliminary or incidental to such proceedings are, to the
extent that they have not been completed, then to be treated as having been
discontinued.
Criminal Procedure Ordinance (Cap 221), s 67F

Effect of section 67C determinations on previous orders under section 15(1)(b) of Long-term Prison
Sentences Review Ordinance
5–132 67F.—(1) Where, before any determination is made under section 67C(3) (whether
or not also by application of section 67C(4)(a)) in respect of a prescribed prisoner, any
order has been made under section 15(1)(b) of the Long-term Prison Sentences Review
Ordinance (Cap 524) in respect of the prescribed prisoner (whether or not any such
order has been renewed under section 15(4) of that Ordinance)—
496
(a) the determination does not affect the validity or effect of the order or
the order as renewed from time to time under section 15(4) of that
Ordinance; and
(b) sections 12(2) and 15(3) of that Ordinance are, for all purposes, not to be
regarded as having application to and in relation to the order or the order as
renewed from time to time under section 15(4) of that Ordinance.
(2) Where, before any determination is made under section 67C(4)(b) in respect of
a prescribed prisoner, any order has been made under section 15(1)(b) of the Long-
term Prison Sentences Review Ordinance (Cap 524) in respect of the prescribed pris-
oner (whether or not any such order has been renewed under section 15(4) of that
Ordinance), upon the making of the determination—
(a) without prejudice to section 27 of that Ordinance, the order ceases to have
effect; and
(b) for the purpose of requiring the prescribed prisoner to serve the remainder
(if any) of the sentence of imprisonment by which the relevant sentence is
substituted under the determination—
(i) the Commissioner of Correctional Services must recall the prescribed
prisoner to prison; and
(ii) section 26 of that Ordinance applies to and in relation to the pre-
scribed prisoner as it applies to and in relation to a prisoner referred to
in subsection (1) of that section.
Criminal Procedure Ordinance (Cap 221), s 67G
Interpretation
67G.—(1) In sections 67B, 67C, 67D, 67E and 67F and this section— 5–133
“discretionary life sentence”, has the same meaning as in the Long-term
Prison Sentences Review Ordinance (Cap 524);
“Executive discretion”, has the same meaning as in the Long-term Prison
Sentences Review Ordinance (Cap 524);
“mandatory life sentence”, has the same meaning as in the Long-term
Prison Sentences Review Ordinance (Cap 524);
“prescribed prisoner”, means any prisoner—
(a) to whom any of the relevant provisions applied at their commencement; and
(b) who at all times between such commencement and the commencement of
section 67C has been, and at the commencement of section 67C is still—
(i) serving a discretionary life sentence in respect of the conviction of any
offence;
(ii) serving a mandatory life sentence in respect of the conviction of
murder committed when the prisoner was under 18 years of age; or
(iii) detained at Executive discretion in respect of the conviction of any
offence;
“previous determination”, in relation to a prescribed prisoner, means the
determination of the Chief Executive specifying the minimum term to be
served by the prescribed prisoner for the relevant offence and notified to the
prescribed prisoner by letter dated 2 April 1998, 9 April 1998, 30 April 1998,
11 June 1998 or 16 July 1999, as the case may be;
“previous recommendation”, in relation to a prescribed prisoner, means the
recommendation of the Chief Justice to the Chief Executive specifying the
minimum term to be served by the prescribed prisoner for the relevant of-
fence and dated 15 December 1997, 28 August 1998 or 9 April 1999, as the
case may be;
“relevant offence”, in relation to a prescribed prisoner, means—
(a) where the prescribed prisoner is within the description of paragraph (b)
(i) of the definition of “prescribed prisoner”, the offence described in
that paragraph;
(b) where the prescribed prisoner is within the description of paragraph (b)
(ii) of the definition of “prescribed prisoner”, the offence of murder de-
scribed in that paragraph; or
(c) where the prescribed prisoner is within the description of paragraph (b)
(iii) of the definition of “prescribed prisoner”, the offence described in
that paragraph;
497
“relevant provisions” means—
(a) section 67C as originally enacted by the Long-term Prison Sentences
Review Ordinance (Cap 524); and
(b) section 67D as originally enacted by the Criminal Procedure (Amendment)
Ordinance 1998 (6 of 1998);
“relevant sentence”, in relation to a prescribed prisoner, means—
(a) where the prescribed prisoner is within the description of paragraph (b)
(i) of the definition of “prescribed prisoner”, the discretionary life sen-
tence described in that paragraph;
(b) where the prescribed prisoner is within the description of paragraph (b)
(ii) of the definition of “prescribed prisoner”, the mandatory life sen-
tence described in that paragraph; or
(c) where the prescribed prisoner is within the description of paragraph (b)
(iii) of the definition of “prescribed prisoner”, the detention at Executive
discretion described in that paragraph.
(2) In sections 67C and 67D, any reference to judge is a reference to a judge of the
court, a recorder of the court or a deputy judge of the court.
Notes on legislation
5–134 A minimum period of imprisonment must now be specified under s 67B: see
HKSAR v Zeng Fanyong [2006] 4 HKLRD 403. The aim is that the judge should specify
a period appropriate to the punishment or retribution required and needed to deter
the prisoner and others from committing similar grave offences. If the trial judge fails
to specify the minimum sentence under s 67B, he is not functus officio and the matter
can be remitted to him to fulfil his statutory obligation: HKSAR v Hui Chi Wai [2001] 3
HKLRD 331, CA. It is not incumbent upon a judge in murder cases, in the fixing of a
minimum term, to indicate a starting point: HKSAR v Liu Pak Shing [2010] 2 HKC 342.
A discretionary life sentence can be divided into two parts; one consisting of the
period of detention imposed for punishment and deterrence after considering the
seriousness of the offence and the other part of the sentence reflecting the period
during which the accused’s detention will be governed by considerations of risk
to the public. At the end of the period specified, the accused’s release will be con-
sidered by the Long-term Prison Sentences Review Board; it does not mean he will
be released then: Tong Yu Lam v The Long-term Prison Sentences Review Board [2009] 4
HKC 135.
The accused can appeal against the period specified by the judge even if he doesn’t
challenge the life sentence under s 83G of the Criminal Procedure Ordinance.
However, there is no right to appeal a mandatory life sentence, as it is fixed by law.
In fixing the notional determinate sentence, allowance should be made for a plea
of guilty: R v Meek (1995) 16 Cr App R (S) 1003, CA. Where an offender is convicted
of a number of offences, and is sentenced to life imprisonment for some of them and
to determinate sentences for the others, the period specified should take account of
the offences for which determinate sentences have been passed: R v Lundberg (1995)
16 Cr App R (S) 948, CA; R v Hann [1966] 1 Cr App R (S) 267, CA. Where an offender
who is serving a determinate sentence commits an offence for which the court must
pass a mandatory life sentence, the period specified for the purposes of section 67B
may be calculated so as to ensure that he remains in custody for an appropriate period
after the date on which he would be released from the determinate sentence: see R v
Haywood [2000] 2 Cr App R (S) 418, CA.
The main objective in passing a life sentence as opposed to a long fixed term sen-
tence, is to ensure a person is not released on a particular date irrespective of whether
he remains a continuing danger: R v Thornett (1979) 1 Cr App R (S) 1. Once the pro-
posed sentence reaches 30 years or over, an indeterminate sentence should at least be
considered: R v Cheung Hing Biu [1984] HKLR 87. Someone sentenced to life impris-
onment may be released earlier than one sentenced to a long determinate sentence: R
v Pither (1979) 1 Cr App R (S) 51.
That the offender is young is not a bar to a life sentence in a suitable case: HKSAR v
Hui Chi Wai [2003] 2 HKC 582, CA.
498
In deciding, where a discretionary life sentence is being imposed, on the part of
the sentence to be specified for the purposes of s 67B of the Criminal Procedure
Ordinance the need to protect the public from danger posed by the defendant should
not be taken into account in arriving at a notional determinate term for the offence
(the first step in the process); otherwise, there is a risk of double sentencing; the
elements of dangerousness and risk to the public are covered by the passing of the dis-
cretionary life sentence and so should not feature in fixing the notional determinate
term; and this was particularly so when fixing a term by reference to the guidelines in
R v Milberry; R v Morgan; R v Lackenby [2003] 1 WLR 546, CA, where a clear factor in
the higher starting point was the level of risk posed by the offender to society; some
discount should be allowed for the public risk element of the term so as to ensure that
it is not reflected in the notional determinate term, but a precise mathematical exer-
cise is not required: R v Wheaton [2005] 1 Cr App R (S) 82, CA.
In murder cases, where there is a clear long-term danger presented by the defendant
to the public, the plea of guilty carries scant weight in the decision whether to impose
a determinate sentence, and the effect of the plea on the minimum term cannot war-
rant anything like the degree of recognition afforded in non-murder cases: HKSAR v
Liu Pak Shing [2010] 2 HKC 342.
N. Automatic Life Sentences

Legislation
Offences Against the Person Ordinance (Cap 212), s 2
Murder
2.—Any person who is convicted of murder shall be imprisoned for life. However, if it 5–135
appears to the court that a person convicted of murder was under 18 years of age at the
time of the offence, the court has a discretion as to whether the person should be sen-
tenced to imprisonment for life or to imprisonment for a shorter term.
Notes on automatic life sentences

A person aged 18 or over who is convicted of murder will be sentenced to life 5–136
imprisonment. This is mandatory. When the constitutionality of this penalty was
challenged on the basis of arbitrariness in HKSAR v Lau Cheong [2002] 5 HKCFAR
415, the Court of Final Appeal upheld its validity under the Hong Kong Bill of
Rights Ordinance (Cap 383). In Wynne v UK [1994] 19 EHRR 333, the European
Court likewise sanctioned such a punishment due to the “inherent gravity of the
offence”.
As regards offenders who appear to have been under the age of 18 at the time of the
murder, they may be sentenced to life or to imprisonment for a lesser term. In HKSAR
v Cheng Yat Ming (No 2) [1997] HKLY 293, a life sentence imposed upon an offender
who was aged 17 at the time of the murder was substituted on appeal with a term of
28 years. In HKSAR v Lee Kar Yeung [2000] 1 HKLRD 473, a 30-year term of imprison-
ment was imposed on a 15-year-old for a premeditated murder. Long terms are the
norm if life is not imposed. If, however, life is imposed on such persons, substantial
minimum terms will equally be proper: HKSAR v Hui Chi Wai (No 2) [2003] 3 HKC
582, CA (see s 67B of the Criminal Procedure Ordinance).
There is no scope for contending that an indefinite sentence of mandatory life im-
prisonment can only be valid if a minimum term is fixed by the judge as the punitive
part of the sentence: see Tong Yu Lam v The Long-Term Prison Sentences Review Board
[2009] 4 HKC 133.
O. Extended Sentences
There are several ordinances that provide for longer sentences when the accused 5–137
has a criminal record or, in the case of the Dangerous Drugs Ordinance (Cap 134), it
is proved that a minor was involved in the commission of the offence.
499
Gambling Ordinance (Cap 148), s 6
Gambling in a gambling establishment
5–138 6.—Any person who gambles in a gambling establishment commits an offence and
is liable—
(a) on first conviction to a fine of $10000 and to imprisonment for 3 months;
(b) on second conviction to a fine of $20000 and to imprisonment for 6 months;
(c) on third or subsequent conviction to a fine of $30000 and to imprisonment
for 9 months.
(See Att-Gen v Wong Ho Ming [1998] HKLR 317, for the effect of prior offences com-
mitted made under the Gambling Ordinance (Cap 148)).
Massage Establishments Ordinance (Cap 266), s 4(3)
Prohibition on operating etc. massage establishment without a licence
5–139 4.—(1) Any person who on any occasion operates, keeps, manages, assists in any cap-
acity in the operation of, or assists in the management of, a massage establishment for
the operation of which a licence is not in force commits an offence.
(2) For the avoidance of doubt it is hereby declared that it shall not be a defence that
a person charged with an offence under subsection (1) did not know that the operation
of the massage establishment which is the subject of the offence was not licensed.
(3) Any person who commits an offence under subsection (1) shall subject to subsec-
tion (4) be liable—
(a) on first conviction to a fine of $50,000 and to imprisonment for 6 months;
(b) on a second or subsequent conviction to a fine of $100,000 and to imprison-
ment for 2 years.
(4) (Repealed 13 of 1995 section 2)
(See R v Tai Wai-hang [1985] HKLY 358, for a discussion on the use of section 4(3)
of the Massage Establishments Ordinance (Cap 266)).
Firearms and Ammunition Ordinance (Cap 238), s 20
Possession of an imitation firearm
5–140 20.—(1) Subject to subsections (2) and (3), any person who is in possession of an imi-
tation firearm commits an offence and is liable to imprisonment for 2 years.
(2) Any person who, within 10 years of being convicted of an offence specified in the
Schedule or of an offence under this Ordinance, commits an offence under subsection
(1) is liable to imprisonment for 7 years.
(3) A person does not commit an offence under subsection (1) if he satisfies the
magistrate that—
(a) at the relevant time he was under the age of 15; or
(b) he was in possession of the imitation firearm in his capacity as a person who
deals in imitation firearms by way of trade or business, or as a servant of such
a person carrying out his bona fide and lawful instructions; or
(c) he was not in possession of the imitation firearm for a purpose dangerous to
the public peace, or of committing an offence, or in circumstances likely to
lead to—
(i) the commission of an offence; or
(ii) the possession of the imitation firearm for a purpose dangerous to the
public peace, by himself or any other person.
(4) No prosecution for an offence under subsection (1) shall be instituted without the
consent of the Secretary for Justice but this subsection shall not prevent the arrest, or the
issue of a warrant for the arrest, of a person for any such offence.
(See R v Tong Yuen [1989] 2 HKLR 301, for a discussion of the effect of section 20(2)
of the Firearms and Ammunition Ordinance (Cap 238)).
Dangerous Drugs Ordinance (Cap 134), s 56A
Sentencing in respect of specified offences
5–141 56A.—(1) Subject to subsection (5), where a person (other than a minor) has been
convicted of a specified offence and—
(a) a court is satisfied beyond reasonable doubt as to any information furnished
under subsection (2); or
500
Sect. III] Sentences and Measures for Offenders Under 21 § 5–142
(b) any such information is agreed by the person,
then the court—
(i) shall have regard to such information when it passes a sentence on the
person for the offence; and
(ii) may, if it thinks fit, pass a sentence on the person for that offence that
is more severe than the sentence it would, in the absence of such infor-
mation, have passed.
(2) Information which may be furnished to a court under this subsection is any infor-
mation which proves that the commission of the relevant specified offence involved a
minor and, without limiting the generality of the foregoing, the information may relate
to any of the following—
(a) the procuring, supplying or trafficking by whatever means of a dangerous
drug for or to a minor for possession or otherwise by a person;
(b) a person obtaining by whatever means a dangerous drug from a minor;
(c) provision by a person to a minor of any pipe, equipment or apparatus fit
and intended for the smoking, inhalation, ingestion or injection of a
dangerous drug;
(d) a person intentionally or unintentionally employing, hiring, using, per-
suading, enticing, or coercing a minor in the commission of a specified of-
fence or the avoidance of detection or apprehension of such and offence;
(e) use of a minor in assisting the operation or management of premises which
are used as a divan or for unlawful trafficking, manufacturing, or storage of
a dangerous drug.
(3) Only information that would be admissible in evidence in criminal proceedings
(including proceedings in respect of sentencing) may be furnished to the court under
subsection (2).
(4) Where the prosecution seeks to furnish information to a court under subsec-
tion (2), the court shall allow the person convicted of the relevant specified offence an
opportunity to—
(a) object to the reception of the information; and
(b) where such information is received by the court, furnish other information
regarding that first-mentioned information.
(5) A sentence passed pursuant to subsection (1) shall not exceed the maximum pen-
alty permitted by law for the relevant specified offence.
(6) This section shall operate without prejudice to any other information that may be
furnished to a court before a person is sentenced, or to any other information to which
a court shall or may have regard when sentencing a person for any offence.
(7) The power of a court to pass a more severe sentence under subsection (1) shall
extend to—
(a) conspiracy to commit;
(b) inciting another to commit;
(c) attempting to commit; and
(d) aiding, abetting, counselling or procuring the commission of, a specified
offence.
(8) This section shall not apply to a person who is convicted of a specified offence
committed before the commencement of this section.
(9) In this section—
“court” ( … ) includes a magistrate;
“specified offence” ( … ) means any offence under section 4, 4A, 5, 6, 8, 9, 35,
36 or 37.
(See HKSAR v Lam Kam Kwong [2002] 1 HKC 541, for a discussion of the effect of
section 56A of the Dangerous Drugs Ordinance (Cap 134)).
III. SENTENCES AND MEASURES FOR OFFENDERS UNDER 21
A. Introduction
There are five forms of custodial sentence for offenders under the age of 21 – im- 5–142
prisonment, (§5–129, below), detention centre and training centre orders (§§5–139
and 5-150, below), reformatory school (§5–203, below), and rehabilitation centre
501
(§5–177, below). However, the court must be wary of sending young offenders to
prison: R v Hor Wai Ming [1985] 1 HKC 30. Under section 109A(1) of the Criminal
Procedure Ordinance (Cap 221), a court should not sentence a person aged between
16 years to 20 years, inclusive, to imprisonment unless no other method of dealing
with the person is appropriate. To determine this, the court must call for and study re-
ports, unless the offender has committed an excepted offence, as set out in Schedule
3 of the Criminal Procedure Ordinance or if it would be futile, such as in the case of
a young illegal immigrant.
If detention is inevitable, the court must first consider the options of training
centre or detention centre to see if they will meet the justice of the case. The court
should consider the four principles of sentencing – retribution, deterrence, preven-
tion and rehabilitation: Att-Gen v Fong Ming Yuen [1989] 2 HKLR 177. Rehabilitation,
while important, is not the only object of the court’s sentence: Att-Gen v Law Ying
Cheung [1981] HKC 161. The interests of the community must also be considered, and
these may require the emphasis to be put on punishment: Re Applications for Review of
Sentences [1972] HKLR 370.
In the case of serious crime, imprisonment may be inevitable in the absence of ex-
ceptional circumstances: Secretary for Justice v Wong Chi Fung [2018] HKCFA 35, (FACC
8, 9 & 10/2017, [2018] HKEC 2262). Youth is not of itself an exceptional circumstance
although extreme youth might be: Att-Gen v Li Chi Ko [1987] HKLR 1233. See also
HKSAR v Law Ka Kit [2003] 2 HKC 178. Extreme youth concerns someone aged 15 or
under. Probation, coupled with parental supervision, is an option for young offenders,
including those aged under 14 years.
B. General Provisions
(1) Legislation
Criminal Procedure Ordinance, s 109A
Restriction on imprisonment of persons between 16 and 21 years of age

5–143 109A.—(1) No court shall sentence a person of or over 16 and under 21 years of
age to imprisonment unless the court is of opinion that no other method of dealing
with such person is appropriate; and for the purpose of determining whether any other
method of dealing with any such person is appropriate the court shall obtain and con-
sider information about the circumstances, and shall take into account any information
before the court which is relevant to the character of such person and his physical and
mental condition.
which is declared to be an excepted offence by the Third Schedule.
(2) In this section, ‘court’ includes the District Court and a magistrate.
For the purposes of section 109A, the relevant date is that on which the sentence
is imposed on the defendant, not the date of the offence or the conviction: Secretary
for Justice v Leung Hiu-yeung [2018] HKCFA 43 [59], [2018] 6 HKC 99. (But see also
section 19 of the Juvenile Offenders Ordinance (Cap 226), below).
Order not to be invalidated by subsequent proof of age
5–144 19.—Where a person, whether charged with an offence or not, is brought before any
court and it appears to the court, after considering any available evidence as to his age,
that he is a child or young person, an order or judgment of the court shall not be invali-
dated by any subsequent proof that the age of that person has not been correctly stated
to or presumed or declared by the court, and the age presumed or declared by the court
to be the age of the person so brought before it shall, for the purposes of the Ordinance,
be deemed to be the true age of that person, and where it appears to the court, after
considering any available evidence as to his age, that the person so brought before it is
of the age of 16 years or upwards, that person shall for the purposes of this Ordinance
be deemed not to be a child or young person.
If the young offender is aged below 16, he is dealt with under the Juvenile Offenders
Ordinance, which restricts punishment on children and young persons. A child
502
is defined as a person under 14 years. A young person is defined as a person aged
14 years and under the age of 16.
Restrictions on punishment of children and young persons
11.—(1) No child shall be sentenced to imprisonment or committed to prison in de- 5–145
fault of payment of a fine, damages, or costs.
(2) No young person shall be sentenced to imprisonment if he can be suitably dealt
with in any other way.
(3) A young person sentenced to imprisonment shall not be allowed to associate with
adult prisoners.
Special arrangements are also made for prisoners under 21 years of age, so they
are housed in separate institutions and may be required to attend educational classes.
(2) Notes
A court sentencing a young offender must heed the concern and intention of the 5–146
legislature as expressed in section 11 of the Juvenile Offenders Ordinance (Cap 226)
and section 109A of the Criminal Procedure Ordinance (Cap 221): R v Chan Kwok-
Keung [1998] 1 HKLR 279.
The words “shall obtain and consider information about the circumstances” in
section 109A are to be interpreted as meaning that the court should seek material
about the whole of the circumstances surrounding the case, including the character
of the accused and his physical and mental condition to ascertain whether there is
any method of dealing with him other than imprisonment: Chan Wai Ming v R [1960]
HKLR 571.
The requirements of section 109A are directory, not mandatory, so it is not ne-
cessary as a matter of law for a court to obtain the information specified before
imposing a sentence of imprisonment if the court concludes that imprisonment is
inevitable: Secretary for Justice v Wong Chi Fung [2018] 2 HKC 50 [90] (CFA).
It is clear that imprisonment is not to be imposed unless the court decides no other
sentence is appropriate in the circumstances. When considering the appropriateness,
the court has to consider the nature and gravity of the offence and the interests of the
community: R v Yu Chun Hoi [1991] 1 HKLR 479.
If there is a conflict between the young offender’s interests, his rehabilitation, de-
terrence to him and to others and the interests of the community, the court must re-
solve that conflict: Att-Gen v Suen Yuen Ming [1989] 2 HKLR 403.
An accused under the age of 18 who is convicted of murder now may be sentenced
to imprisonment for a shorter term than the mandatory life sentence passed on an
adult: section 2 of the Offences Against the Person Ordinance (Cap 212) as amended
by the Long-Term Prison Sentences Review Ordinance (Cap 524). If a life sentence is
passed on a person under 18 years old, this is a discretionary life sentence and under
section 67B of the Criminal Procedure Ordinance, the judge must specify a minimum
term that the accused should serve for the offence: see HKSAR v Hui Chi-wai (No 2)
(CACC 78/1999, [2001] HKEC 871).
Under section 15(1) of the Juvenile Offenders Ordinance (Cap 221), the court is
given many options for disposing of a case involving a child or young person.
Methods of dealing with children or young persons charged with offences
15.—(1) Where a child or young person charged with any offence is tried by any 5–147
court, and the court is satisfied of his guilt the court shall take into consideration the
manner in which, under the provisions of this or any other Ordinance or law enabling
the court to deal with the case the case should be dealt with, and subject to such provi-
sions may deal with the case in any of the following manners or a combination thereof,
namely—
(a) by dismissing the charge;
(b) by discharging the offender on his entering into a recognisance;
(c) by dealing with the offender under the provisions of the Probation of Offenders
Ordinance (Cap 298);
503
(d) by dealing with the offender under section 96(b) of the Magistrates Ordinance
(Cap 227);
(e) if the offender is in need of care and protection, by dealing with him under
section 34 of the Protection of Children and Juveniles Ordinance (Cap 213);
(f) by sending the offender to a reformatory school;
(g) (Repealed 13 of 1995 section 2)
(h) by ordering the offender to pay a fine, damages or costs;
(i) by ordering the parent or guardian of the offender to pay a fine, damages
or costs;
(j) by ordering the parent or guardian of the offender to give security for his good
behaviour;
(k) by committing the offender to a place of detention;
(l) where the offender is a young person, by sentencing him to imprisonment or to
detention in a training centre establishing under the Training Centres Ordinance
(Cap 280) or to detention in a rehabilitation centre within the meaning of the
Rehabilitation Centres Ordinance (Cap 567);
(m) where the offender is a male person, by dealing with him under the provisions of
the Detention Centres Ordinance (Cap 239);
(n) by dealing with the case in any other manner in which it may legally be dealt with:
Provided that nothing in this section shall be construed as authorising the
court to deal with any case in any manner in which it could not deal with the
case apart from this section.
(2) Damages which may be ordered under subsection (1)(h) or (i) shall be by way
of compensation for—
(a) personal injury;
(b) loss of or damage to property; or
(c) both such injury and loss or damage,
as the court thinks reasonable; but in the case of an order made by a magistrate’s
court, the compensation shall not exceed $5,000.
5–148 Under section 96(b) of the Magistrates Ordinance (Cap 227), the offender will
be delivered to his parent, guardian or nearest adult relative; or, if the accused is an
apprentice or servant, to his master or mistress; or, if he is a pupil, to the person in
charge of the school at which the accused is attending, provided that the person to
assume responsibility for the accused executes a bond that he will be responsible for
the good behaviour and also, if the magistrate thinks it necessary, for the proper edu-
cation of the accused for any period not exceeding 12 months.
Juvenile courts are presided over by permanent magistrates. They have jurisdiction
to try any charge laid against a child or young person except homicide. Juvenile courts
can take advice prior to passing sentence from the Juvenile Courts Advisory Panel,
which is appointed by the Chief Justice. A young person or child will generally be tried
in a juvenile court, but if such an accused is jointly charged with an older person, his
case may be transferred with that of his co-accused to a higher court for trial. Under
section 3F of the Juvenile Offenders Ordinance, the case of any child or young person
convicted of an offence, other than homicide, in a higher court, should, unless the
court is satisfied it would not be desirable to do so, be remitted for sentence to the
juvenile court (see §5–41, above). However, there are provisions for detaining those
found guilty of serious crimes.
Detention in place of detention
5–149 14.—(1) Where a child or young person—
(a) is found guilty of an offence punishable in the case of an adult with
imprisonment; or
(b) would be liable if he were an adult to be imprisoned in default of payment of
any fine, damages or costs, and the court considers that no other method in
which the case may be dealt with is suitable, the court may order that he be
detained in a place of detention.
(2) A child or young person ordered to be detained in a place of detention shall
be so detained for such period not exceeding 6 months from the date of such order
504
as the Director of Social Welfare may determine: provided that the period of de-
tention shall not exceed the maximum term of imprisonment to which the child or
young person would have been liable, if he were an adult, for the offence of which
he was found guilty or in default of payment of the fine, damages or costs, as the
case may be.
Detention in case of certain crimes committed by children or young person
12.—Notwithstanding anything in this Ordinance to the contrary, when a child is 5–150
convicted on indictment of manslaughter or where a young person is convicted on in-
dictment of an attempt to murder, or of manslaughter, or of wounding with intent to
do grievous bodily harm, the court may sentence the offender to be detained for such
period as may be specified in the sentence; and where such a sentence is passed the child
or young person shall, during that period, notwithstanding anything in the provisions
of this Ordinance, be liable to be detained in such a place and on such conditions as
the Chief Executive may direct, and whilst so detained shall be deemed to be in legal
custody.
Provisions as to discharge of children or young persons detained in accordance with directions of
the Chief Executive
13.—(1) A person in detention pursuant to the directions of the Chief Executive 5–151
under section 12 may, at any time, be discharged by the Chief Executive on licence.
(2) A licence may be in such form and may contain such conditions as the Chief
Executive may direct.
(3) A licence may at any time be revoked or varied by the Chief Executive and where
a licence has been revoked the person to whom the licence related shall return to such
place as the Chief Executive may direct, and if he fails to do so may be apprehended
without warrant and taken to that place.
C. Detention Centre Orders

General
Detention centres provide an alternative sentencing option to the courts for young 5–152
male offenders aged between 14 and under 25 who do not need sending to prison.
The centres are run by the Commissioner of Correctional Services and emphasis is
placed on hard work, strenuous exercise and discipline. The intention is to provide a
short, sharp shock to the inmate. The length of time served in a detention centre is
directly related to the inmate’s conduct; for someone under 21 years it is between one
month and six months; for those aged between 21-24, it is up to 12 months. A Board
of Review assesses the progress, attitude, effort and response of each inmate on a
monthly basis.
If a court imposes a detention centre order, it should not impose any other sen-
tence: Li Chi Ming v R (CACC 279/1971) and Att-Gen v Wong Loy Hing [1977] HKLR
96. Such an order also supersedes any previous order imposed by another court: R
v Lee Yin Yee [1988] 1 HKLR 165. A detention centre order is not an option for
anyone who has served or is serving a prison sentence: Chow Wing Leung v R [1977]
HKLR 468. Such an order is also wrong in principle for someone convicted of traf-
ficking in a large quantity of dangerous drugs: Secretary for Justice v Lee Siu Kei [2006]
1 HKC 499.
Unlike other centres, the court does not have to consider a suitability report pre-
pared by the Commissioner of Correctional Services before making a detention order
but it must have been informed by the Commissioner that the accused is suitable and
a place is available for him: Att-Gen v Kong To (CAAR 1/97). Because of the strict dis-
cipline and rigorous physical exertion, a young offender is not considered suitable
for a detention centre order unless he is assessed by the Medical Officer as physic-
ally fit, assessed by the Visiting Psychiatrist as mentally fit; assessed by the Clinical
psychologist as intellectually fit or if he is a confirmed drug dependent or an illegal
505
immigrant or a person in respect of whom a deportation or removal order is in force.
If the Commissioner of Correctional Services does not consider an offender suitable
for detention centre, the court cannot override that decision: Att-Gen v Kong Kin Man
[1997] HKLRD 350, CA.
Pre-sentencing suitability reports should not be called for if there is no prospect of
the court sending the offender to a detention centre: R v Au Ka Fai [1989] 1 HKLR
147. If reports are called for, they should be served on the accused or his legal repre-
sentative prior to sentence so they can address the court on its contents: R v Au Yeung
Ming [1970] HKLR 193: see also HKSAR v Lai Yip Sing [2001] 2 HKLRD 601 where
the court held that the request for a detention centre report meant that the magis-
trate was considering imposing an order of detention in custody of between three
and 12 months and which was made perfectly clear to the defendant so there could
be no feeling of injustice that he had been misled into believing he would receive a
non-custodial sentence.
A court may often have to decide between a detention centre order and a training
centre order. It is a matter for the trial judge taking into account the offence and the
background of the offender after reading the reports prepared for the court. He can
also seek help from the Young Offender Assessment Penal, a board comprising offi-
cials from the Correctional Services Department and the Social Welfare Department,
which assists courts on the sentencing of young offenders.
After release, detainees move to a halfway house for a short period when they go
to work or school, and return at night. They are subject to a statutory period of strict
supervision, including curfew conditions for one year. An after-care officer maintains
regular contact with the ex-inmate and his family to assist and counsel when neces-
sary. If the ex-inmate fails to comply with the conditions of the supervision order, the
Commissioner can make a recall order, when the offender is arrested and taken to a
detention centre where he may be detained.
In HKSAR v Yung Chi Lap [2005] 1 HKLRD 236, it was said that the appellant was a
repeat offender and a detention centre order would serve deterrent and reformatory
purposes. The sentence would also help him to dissociate himself from undesirable
elements.
(2) Legislation
Detention Centres Ordinance (Cap 239), s 4
Detention order
5–153 4.—(1) Where a person who is apparently a young offender is found guilty of a rele-
vant offence the court may, if it is of the opinion that in the circumstances of the case
and having regard to his character and previous conduct it is in his interest and the
public interest that he should undergo a period of detention in a detention centre, in
lieu of imposing any other sentence, make a detention order against him.
(1A) In making a detention order against a person the court shall state in such
order whether such person is apparently under 21 years of age or apparently of or over
21 years of age.
(2) A person against whom a detention order is in force shall be detained in a de-
tention centre for such period from the date of the order as the Commissioner, having
regard to the health and conduct of such person, may determine, being a period which—
(a) in the case of a person stated in the detention order to be apparently of or
over 21 years of age, is not less than 3 months and not more than 12 months;
(b) in the case of a person stated in the detention order to be apparently under
that age, is not less than 1 month and not more than 6 months, and shall
then be released.
(3) A detention order shall not be made against a person who has previously served a
sentence of imprisonment or of detention in a training centre.
(4) A court shall not make a detention order against a young offender unless the
Commissioner has not earlier than 1 month before the date of the order informed the
court that in his opinion the young offender is suitable for detention and that a place is
available for him in a detention centre.
(5) A court may, after conviction of a young offender, remand him in the custody
of the Commissioner for such period, not exceeding three weeks, as the court thinks
506
necessary to enable the Commissioner to form an opinion as to whether or not the
young offender is suitable for detention.
Supervision order
5.—(1) The Commissioner may make a supervision order— 5–154
(a) against a person who is released under section 4(2);
(b) against a person who is released under section 6(3) before the expiration of
12 months from the date when he was last released under section 4(2).
(2) A supervision order shall contain conditions that—
(a) for the period stated therein, which in the case of a person released under
section 4(2) shall not exceed 12 months from the date of his release and in
the case of a person released under section 6(3) shall not exceed 12 months
from the date when he was last released under section 4(2), the person re-
leased shall be subject to supervision by such organisation or person as may
be specified therein;
(b) the person released shall, while under such supervision, comply with such require-
ments, including requirements as to residence, as may be specified therein.
(3) The Commissioner may at any time vary or cancel a supervision order.
(4) A person who fails to comply with a condition of a supervision order which has
been made against him shall be guilty of an offence and liable on conviction to a fine of
$5000 and to imprisonment for 12 months.
Recall order
6.—(1) The Commissioner may, if he is satisfied that a person against whom a super- 5–155
vision order is in force has failed to comply with any requirement of the order, make
a recall order against such person requiring him to return to a detention centre, and
thereupon such person may be arrested and taken to a detention centre.
(2) A person taken to a detention centre under subsection (1) may be detained—
(a) in the case of a person stated in the detention order to be apparently of or
over 21 years of age, until the expiration of 12 months from the date of the
detention order, or 3 months from the date of his being arrested under the
recall order, whichever is the later;
(b) in the case of a person stated in the detention order to be apparently under
that age, until the expiration of 6 months from the date of the detention
order, or 3 months from the date of his being arrested under the recall order,
whichever is the later.
(3) The Commissioner may at any time release a person in respect of whom a recall
order is in force.
Sentence of detention in training centre, etc, and imprisonment for detained person
7.—(1) If a person in respect of whom a detention order, a supervision order or a 5–156
recall order is in force is sentenced—
(a) further to detention in a detention centre;
(b) to detention in a training centre or an addiction treatment centre; or
(c) to a term of imprisonment which is not suspended, the detention order,
supervision order or recall order shall lapse.
(2) A detention order, a supervision order or a recall order made against any person
on whom a suspended sentence has been passed (whether made before or after the sus-
pended sentence was passed) shall lapse if that suspended sentence is ordered to take
effect.
Arrest, etc, of persons unlawfully at large
8.—(1) A police officer may, if he reasonably suspects that a detention order or a re- 5–157
call order is in force against a person and that such person is unlawfully at large, arrest
such person and take him to a detention centre.
(2) An officer of the Correctional Services Department specified in a supervision
order made in respect of a person against whom a recall order has been made or such
507
other officer of that Department as the Commissioner may substitute for the officer so
specified by a variation of that supervision order may, if he reasonably suspects that that
recall order is in force against that person and that such person is unlawfully at large,
arrest such person and take him to a detention centre.
(3) Any period during which a person against whom a detention order or a recall
order is in force is unlawfully at large shall be disregarded in calculating the period for
which he may be detained under the detention order or recall order, unless the Chief
Executive otherwise directs in a particular case.
Detention Centres Ordinance (Cap 239), s 8A
Transfers from detention centre to prisons or training centre
5–158 8A.—If a detainee is reported to the Chief Executive by the Commissioner to be—
(a) physically or mentally incapable of full participation in the programme of a
detention centre;
(b) exercising a bad influence on the other inmates of the detention centre; or
(c) incorrigible,
the Chief Executive may direct—
(i) that such detainee be detained in a training centre; or
(ii) that he be detained in prison for such term as the Chief Executive may, after
consultation where practicable with the judge or magistrate who made the
detention order, determine, not exceeding the maximum term of impris-
onment to which he was liable for the offence of which he was convicted,
and for the purposes of this Ordinance and for the purposes of the Training
Centres Ordinance (Cap 280) or the Prisons Ordinance (Cap 234), ac-
cording to whether such detainee is directed to be detained in a training cen-
tre or in prison, he shall be deemed to be a person who, on the day on which
the detention order was made against him, had instead been sentenced to
detention in a training centre or, as the case may be, to imprisonment for the
term so determined by the Chief Executive.

Visitors
5–159 9.—(1) The Chief Executive may appoint visitors for the purpose of visiting detention
centres.
(2) A detention centre shall be visited by 2 visitors together at least once a month.
(3) Visitors shall exercise and perform the powers and duties conferred on visiting
justices and visiting committees under the Prisons Ordinance (Cap 234).
Application of Prisons Ordinance (Cap 234)
5–160 10.—Subject to any regulations made under section 11 of this Ordinance, sections
9 to 12 inclusive, 17 to 21 inclusive and 24 of the Prisons Ordinance (Cap 234), and
the Prison Rules (Cap 234 sub leg), shall apply to a detention centre and to the staff
thereof and to detainees in like manner as if the detainees were prisoners and a de-
tention centre were a prison, and such provisions shall be read with such verbal alter-
ations and modifications not affecting their substance as are necessary to render the
same applicable:
Provided that in the event of conflict between this Ordinance and the Prisons
Ordinance (Cap 234), this Ordinance shall prevail.
Regulations
5–161 11.—The Chief Executive in Council may make regulations for all or any of the fol-
lowing matters—
(a) the regulation and management of detention centres;
(b) the treatment, employment, discipline, control and welfare of persons de-
tained in detention centres;
(c) forms required for the purposes of this Ordinance; and
(d) generally for the better carrying out of the purposes of this Ordinance.
508
Power of Chief Executive to give directions
12.—(1) The Chief Executive may give to the Commissioner such directions as he 5–162
thinks fit with respect to the exercise or performance of his powers, functions or duties
under this Ordinance, either generally or in a particular case.
(2) The Commissioner shall, in the exercise or performance of his powers, func-
tions and duties under this Ordinance, comply with any directions given by the Chief
Executive under subsection (1).
Under section 2 of the Ordinance, “recall order” – means an order made under
section 6(1) requiring a person to return to a detention centre;
“relevant offence” – means an offence punishable by imprisonment otherwise than
for non-payment of a fine, but not an offence the sentence for which is fixed by law;
“supervision order” – means an order for supervision made under section 5(1);
“training centre” – means an institution established as a training centre under
section 3 of the Training Centres Ordinance (Cap 280); and “young offender” –
means an offender of or over 14 and under 25 years of age.
Detention Centres Regulations
Regulation 5 Medical examination
A detainee shall, on the day of his admission or re-admission to a detention centre or 5–163
as soon as possible thereafter, be examined by a medical officer.
Regulation 6 Personal record of detainee

A detainee shall, as soon as possible after his admission or re-admission, be inter- 5–164
viewed by the Officer-in-charge, who shall enter in the detainee’s record such particulars
or further particulars of the detainee as he considers desirable.
Regulation 7 Grades
(1) Detainees shall be divided into such grades as the Commissioner may approve. 5–165
(2) The privileges of each grade shall be specified by the Commissioner.
Regulation 8 Recreation
At least one hour a day shall be devoted to physical training or to organised games, 5–166
and such period shall be deemed to be work for the purposes of regulation 9.
Regulation 9 Work
(1) Every detainee, unless excused by a medical officer on medical grounds, shall 5–167
undertake such work or instruction, for not more than 10 hours a day, as may be re-
quired by the Officer-in-charge.
(2) Such work shall, as far as possible, involve physical effort.
(3) A detainee shall not receive any payment for work done.
Regulation 12 Board to make recommendations for detainee’s discharge

(1) The Commissioner shall appoint for each detention centre a Board consisting of 5–168
the Superintendent, the Officer-in-charge and such other officers as he may select, to
watch the behaviour of each detainee and to make recommendations for his discharge.
(2) The Board shall cause a detainee to be brought before it at monthly intervals
during his detention.
Regulation 13 Supervision order

A supervision order shall be read and explained to a detainee by, or in the presence 5–169
of, the Officer-in-charge before the release of the detainee from the detention centre.
Regulation 14 Leave of absence

(1) The Commissioner may grant to a detainee permission to be absent from a deten- 5–170
tion centre for a period not exceeding 24 hours at any one time.
(2) A detainee permitted to be absent under paragraph (1) shall be given a pass
signed by the Commissioner stating the period during which the detainee is permitted
to be absent from the detention centre and the address at which the detainee is required
to reside during his absence.
509
(3) A detainee who, without lawful excuse—
(a) fails to return to the detention centre at or before the expiration of the
period for which he has been granted leave; or
(b) fails to reside at the address specified in the pass issued under paragraph (2),
shall be guilty of a disciplinary offence.
Regulation 15 Disciplinary offence

5–171 A detainee who commits any of the offences enumerated in rule 61 of the Prison
Rules (Cap 234 sub leg) as applied by section 10 of the Ordinance shall be guilty of a
disciplinary offence.
Regulation 16 Punishment which may be imposed by officer in charge

5–172 (1) A detainee who commits a disciplinary offence under regulation 14 or 15
shall be liable, by order of the Officer-in-charge, to any one or more of the following
punishments—
(a) (Repealed LN 191 of 1990)
(b) (Repealed LN 165 of 1983)
(c) solitary confinement for a period not exceeding 14 days;
(d) forfeiture of privileges for a period not exceeding 1 month;
(e) reduction of grade;
(f) a caution.
(2) A detainee may appeal to the Commissioner against an order made by the Officer-
in-charge under paragraph (1), within 48 hours after the making of the order, by giving
notice in writing to the Officer-in-charge, who shall forthwith notify the Commissioner
and stay execution of the order pending the determination of the appeal.
(3) The Commissioner may confirm, vary or reverse the order against which the ap-
peal is made or may substitute therefore any other order which the Officer-in-charge was
competent to make under paragraph (1).
(4) (Repealed LN 165 of 1983)
(5) (Repealed LN 191 of 1990)
(6) Rule 63 of the Prisons Rules (Cap 234 sub leg) shall not apply to or in respect of
detainee.
D. Training Centre Orders

General
5–173 Training centres are run by the Correctional Services Department for offenders
aged over 14 and under 21. The emphasis is strongly on rehabilitation and offenders
are trained in a trade. Once the court has decided that the accused does not need
to go to prison, this is one of several alternative custodial options open to him. Pre-
sentence reports assist the court in deciding which option will best suit each offender.
Assistance can also be sought from the Young Offender Assessment Panel, a board
comprising members of the Correctional Services Department and the Social Welfare
Department, who can provide a coordinated professional view to the courts of young
male offenders aged 14-25 and young female offenders aged 14 to under 21.
Offenders are sent to a training centre for an indeterminate period of time. The
minimum is six months and the maximum three years. It depends on the conduct of
the offender how long he actually stays there. This is followed by up to three years’
supervision. This contrasts with a maximum stay in the detention centre of six months
(for under 21) and 12 months (for those aged 21-24). While offenders often prefer
to be sent to detention centre as it is a much shorter sentence, the regime there is
much harsher and is not suitable for all. The treatment given at each centre is quite
different.
Guidelines for imposition of training centre order

5–174 Guidelines on when a court should impose a training centre order were laid down
by the Court of Final Appeal in Wong Chun Cheong v HKSAR [2001] 4 HKCFAR 12:
(1) The court should first be satisfied that the threshold requirements are met, ie
that the offence is punishable with imprisonment, and that the offender is aged
between 14 and 21.
510
(2) The court should then consider whether in the case at hand, the interest of
the community requires that the rehabilitative approach should give way to a
punitive or deterrent sentence. If so, the training centre option should not, save
in exceptional cases, be adopted.
(3) If it is in the interest of the community to adopt a rehabilitative approach, then
the court must have regard to the offender’s character and previous conduct, as
well as the circumstances of the offence in deciding whether it is expedient that
he should undergo a period of training in a training centre for his reformation
and prevention of crime.
(4) Where the circumstances of the offence are such that a training centre order would
be too lenient, the court is entitled to reject that option notwithstanding that the
offender would otherwise be regarded as a suitable candidate for training.
(5) Similarly, where the offence committed is minor and would not otherwise call for
a custodial sentence, detention in a training centre would, save in exceptional
cases, be inappropriate, notwithstanding the offender’s suitability as a candidate
for training.
It is wrong in principle to order detention in a training centre consecutive to a
prison sentence: Att-Gen v To Ka Shing [1987] HKLR 69, CA. Training centres do
not cater for foreign nationals: R v Ambas and Tiomzon (CACC 441/1994, 17 March
1995). A training centre order may be appropriate for even a serious offence, as a
young offender may need to be rehabilitated and imprisonment might not be the
best answer: HKSAR v Wong Tsz Hin [2013] 1 HKC 239. The interests of rehabilitation
may have to take priority over those of deterrence, even where the offence is quite
serious: HKSAR v Lau Man Hin [2014] 5 HKLRD 496. There is, however, no prin-
ciple that young drug traffickers will be sent to a training centre on account of their
age: Secretary for Justice v Chau Tsz Tim [2015] 1 HKLRD 853.
(2) Legislation
Training Centres Ordinance (Cap 280), s 3
Provision of training centres

3.—(1) The Secretary for Security may establish institutions, hereinafter referred to 5–175
as training centres—
(a) for the training and reformation of offenders who have attained the age of
14 years and have not attained the age of 21 years; and
(b) to which persons who have attained the age of 14 years and have not attained
the age of 21 years may be remanded or committed under section 4A(1).
(2) The Secretary for Security may declare that such places and buildings as he may
deem fit shall be used for the purposes of a training centre, and any such declaration
shall be published in the Gazette.
Sentence of detention in a training centre
4.—(1) Where a person is convicted of an offence punishable with imprisonment, 5–176
then if on the day of his conviction he is in the opinion of the court not less than 14 but
under 21 years of age, and the court is satisfied that it is in the interest of the community
and that having regard to his character and previous conduct, and to the circumstances
of the offence, it is expedient for his reformation and for the prevention of crime that
he should undergo a period of training in a training centre, the court may, in lieu of any
other sentence, pass a sentence of detention in a training centre.
(2) A person sentenced to detention shall be detained in a training centre for such
period, not extending beyond 3 years from the date of his sentence, as the Commissioner
may determine, and shall then be released:
Provided that the Commissioner shall not release any such person before the expir-
ation of 6 months from the date of his sentence, unless required to do so by direction
of the Chief Executive.
(3) Before a sentence of detention is passed, the court shall consider any report or
representations made by or on behalf of the Commissioner on the offender’s physical
and mental condition and his suitability for such sentence; and if the court is the District
511
Court or a magistrate and has not received such a report or representations, it shall after
conviction remand the offender into the custody of the Commissioner for such a period
or periods, not exceeding 3 weeks in the case of any single period, as the court thinks
necessary to enable the report or representations to be made.
Training Centres Ordinance (Cap 280), s 4A
Remand or committal to custody in a training centre
5–177 4A.—(1) A court on remanding or committing for trial a person who in the opinion
of the court has attained the age of 14 years and has not attained the age of 21 years
and who is not released on bail shall, instead of committing him to prison, commit him
to custody in a training centre, there to be detained for the period for which he is re-
manded or until he is thence delivered in due course of law:
Provided that it shall not be obligatory on the court so to commit him if the court cer-
tifies that he is of so unruly a character that he cannot be safely so committed or that he
is otherwise unsuitable for committal to custody in a training centre.
(2) A commitment under this section may be varied or, in the case of a person who
proves to be of so unruly a character that he cannot be safely detained in such custody,
or to be otherwise unsuitable for committal to custody in a training centre, revoked by
any court, and if it is so revoked the person may be committed to prison. (Amended
4 of 1974 section 3)
(3) Nothing in subsection (1) shall affect the power of a juvenile court to remand
a child or young person to custody in a place of detention as provided by section 7(1)
of the Juvenile Offenders Ordinance (Cap 226).
Supervision
5–178 5.—(1) A person after his release from a training centre and until the expiration of
3 years from the date of his release may be subjected to supervision by such society or
person as may be specified in a notice to be given him by the Commissioner on his re-
lease, and shall, while under supervision, comply with such requirements, including re-
quirements as to residence, as may be so specified: provided that the Commissioner may
at any time modify or cancel any of the said requirements or order that a person who is
under supervision as aforesaid shall cease to be under supervision.
(1A) A person who fails to comply with any requirement for the time being specified
in a notice given to him under subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine of $5000 and to imprisonment for 12 months.
(2) If the Commissioner is satisfied that a person under supervision has failed to
comply with any requirement for the time being specified in the notice given to him
under subsection (1), the Commissioner may by order recall such person to a training
centre, and thereupon such person shall be liable to be detained in a training cen-
tre until the expiration of 3 years from the date of his sentence, or the expiration of
6 months from the date of his being taken into custody under the order, whichever is the
later, and, if at large, such person shall be deemed to be unlawfully at large:
Provided that—
(a) any such order shall, at the expiration of 3 years from the date he is first re-
leased, cease to have effect unless the person to whom it relates is then in
custody there under; and
(b) the Commissioner may at any time release a person who is detained in a
training centre under this subsection; and the foregoing provisions of this
section shall apply in the case of a person so released as they apply in the case
of a person released under section 4(2).
Training Centres Ordinance (Cap 280), 5A

Effect of imprisonment or further sentence of detention
5–179 5A.—(1) If a person in respect of whom a sentence of detention in a training centre,
or a supervision notice or order of recall under section 5, is in force is sentenced to
imprisonment—
(a) for a term of 2 years or less and the sentence of imprisonment is not sus-
pended, the sentence of detention, supervision notice or order of recall shall
be suspended until the expiration of his term of imprisonment;
512
(b) for a term of more than 2 years or a new sentence of detention in a training
centre is passed on him, the first-mentioned sentence of detention in a train-
ing centre, or the supervision notice or order of recall, as the case may be,
shall cease to have effect.
(2) A sentence of detention in a training centre, or a supervision notice or order
of recall under section 5, passed on, given to or made against any person on whom
a suspended sentence of imprisonment has been passed (whether passed, given or
made before or after the suspended sentence was passed) shall, if that suspended
sentence is ordered to take effect, be suspended until the expiration of his term of
imprisonment.
(3) If a person in respect of whom—
(a) a sentence of detention in a training centre under section 4 is in force is
further sentenced to detention in an addiction treatment centre—
(i) his detention in a training centre shall be suspended until he is re-
leased from the addiction treatment centre; and
(ii) any supervision order made against him under section 5 of the Drug
Addiction Treatment Centres Ordinance (Cap 244) may be waived or
suspended as may be decided by the Commissioner;
(b) a supervision notice under section 5 is in force is further sentenced to deten-
tion in an addiction treatment centre—
(i) the supervision notice shall be suspended until he is released from the
addiction treatment centre; and
(ii) where on the date of his release from the addiction treatment centre,
his supervision under the supervision notice—
(c) remains more than 1 year, he shall, at the same time, be subject to super-
vision under any supervision order which may be made against him under
section 5 of the Drug Addiction Treatment Centres Ordinance (Cap
244); or
(d) remains 1 year or less, he shall only be required to be subject to supervision
under any supervision order which may be made against him under section
5 of the Drug Addiction Treatment Centres Ordinance (Cap 244);
(e) an order of recall under section 5 is in force is further sentenced to deten-
tion in an addiction treatment centre, the order of recall shall be suspended
until he is released from the addiction treatment centre or shall be treated
as lapsed as may be decided by the Commissioner.

Provisions as to arrest and further detention of persons unlawfully at large
6.—(1) Any person sentenced to detention who is or is deemed to be unlawfully at 5–180
large may be arrested by any police officer without warrant and taken to the place in
which he is required by law to be detained.
(1A) Any person in respect of whom a supervision notice has been made under
section 5 and against whom an order of recall has been made under subsection
(2) of that section who is or is deemed to be unlawfully at large may be arrested
without warrant by any officer of the Correctional Services Department speci-
fied in that supervision notice, or such other officer of that Department as the
Commissioner may substitute for the officer so specified by a modification of the
requirements of that notice, and taken to the place in which he is required by law
to be detained.
(2) Where any person sentenced to detention is unlawfully at large at any time during
the period for which he is liable to be detained in pursuance of the sentence, then unless
the Chief Executive otherwise directs no account shall be taken in calculating the period
for which he is liable to be so detained of any time during which he was absent from the
training centre:
Provided that—
(a) this subsection shall not apply to any period during which any such
person as aforesaid is detained in prison pursuant to the sentence of any
court; and
(b) nothing contained in this subsection shall be construed as extending the
period during which a person sentenced to detention is liable to supervision
under section 5.
513
Transfers from prison to training centre and vice versa
5–181 7.—(1) If the Chief Executive is satisfied that a person serving a sentence of imprison-
ment is under 21 years of age and might with advantage be detained in a training centre,
he may, after consultation where practicable with the judge or magistrate who passed the
sentence, authorise the Commissioner to transfer such person to a training centre; and
the provisions of this Ordinance shall thereupon apply to such person as if he had on
the date of the transfer been sentenced to detention in a training centre:
Provided that if on that date the unexpired term of his sentence is less than 3 years,
those provisions shall apply to him as if he had been sentenced to detention in a
training centre 3 years before the expiration of that term.
(2) If a person in respect of whom a sentence of detention in a training centre is in
force is reported to the Chief Executive by the Commissioner to be incorrigible, or to
be exercising a bad influence on the other inmates of the training centre, the Chief
Executive may commute the unexpired part of the term for which the said person is
then liable to be detained in a training centre to such term of imprisonment as the
Chief Executive may determine, not exceeding the said unexpired part or the term to
which the said person was liable for the offence of which he was convicted, whichever
be the less; and for the purpose of this Ordinance, the said person shall be treated as
if he had been sentenced to imprisonment for the term so determined by the Chief
Executive.
Application of Prisons Ordinance (Cap 234), Mental Health Ordinance (Cap 136) and the
Evidence Ordinance (Cap 8)
5–182 8.—(1) Subject to any regulations made under section 10 of this Ordinance, the
provisions of—
(a) sections 9 to 12 inclusive, section 16, sections 17 to 21 inclusive and section
23 of the Prisons Ordinance (Cap 234);
(b) the Prison Rules (Cap 234 sub leg); and
(c) sections 55 and 56 of the Mental Health Ordinance (Cap 136),
shall apply to training centres and to the staff thereof and to persons sentenced to de-
tention therein under section 4(1) or committed thereto under section 4A(1) in like
manner as if the persons so detained were prisoners and a training centre were a prison,
and such provisions shall be read with such verbal alterations and modifications not
affecting their substance as are necessary to render the same conveniently applicable:
Provided that—
(a) in the event of conflict between the provisions of this Ordinance and the pro-
visions of the Prisons Ordinance (Cap 234) or the Mental Health Ordinance
(Cap 136) the provisions of this Ordinance shall prevail;
(b) a person committed under section 4A(1) shall be treated as a prisoner
awaiting trial.
(3) Section 81 of the Evidence Ordinance (Cap 8) shall apply to persons detained in
a training centre by virtue of this Ordinance in like manner as if they were prisoners.
(4) In any enactment enacted prior to the commencement of this Ordinance, the
term “prison” – shall be deemed to include a training centre and the term “prisoner” –
to include a person detained in a training centre:
Provided that this subsection shall have no application if its application would lead to
conflict between such enactment and any provision of this Ordinance or any regulation
made under section 10.
Detention Orders
5–183 9.—(1) Where a court passes a sentence of detention in a training centre upon
any person, it shall make an order in writing under the seal of the court in the
prescribed form.
(2) The court shall cause such order to be delivered with the person to whom it
relates to the Commissioner, and such order shall be sufficient authority for the deten-
tion of such person in accordance with the provisions of this Ordinance.
514
Regulations
10.—The Chief Executive in Council may by regulation provide for— 5–184
(a) the regulation and management of training centres;
(b) the treatment, employment, discipline, control and welfare of the persons
detained therein;
(c) the appointment of visiting justices and visiting committees and the func-
tions of such justices and committees;
(d) forms to be used for the purposes of this Ordinance and any regulations
made there under;
(e) the modification in relation to training centres or persons detained therein
of any enactment which by virtue of section 8 would apply to training centres
or persons detained therein, or that any such enactment shall cease to apply
to training centres or persons detained therein; and
(f) the better carrying into effect of the provisions of this Ordinance.
Training Centres Regulations (Cap 280A), reg 5

Medical examinations
Every inmate shall, on the day of his admission or as soon as possible thereafter, be 5–185
separately examined by the medical officer.
Keeping of records
Every inmate shall, as soon as possible after his admission, be seen by the 5–186
Superintendent who shall cause the fullest personal particulars obtainable to be entered
in the inmate’s record.
Appointment of a board to make recommendations for an inmate’s discharge
(1) The Commissioner shall appoint for each training centre a board consisting of the 5–187
Superintendent, the officer-in-charge and such other officers as he may select, to keep
under review the progress of each inmate throughout the period of his detention and to
make recommendations touching his discharge.
(2) The board shall cause each inmate to be brought before it during the 6th month
after the date of his sentence, and his case shall thereafter be reviewed by the board at
monthly intervals.
Removal of unsuitable inmates to prison
(1) If the Superintendent considers an inmate to be unsuitable for training in a train- 5–188
ing centre, he shall cause such inmate to be brought before the board.
(2) The board shall examine the record of such inmate and afford him every oppor-
tunity of showing cause why he should remain in the training centre before it recom-
mends to the Commissioner that the inmate be removed to prison under section 7(2)
of the Ordinance.
Notice of supervision
A person who is subjected to supervision after discharge from a training centre shall 5–189
be given a notice of supervision in the prescribed form, and such notice shall be read to
him and fully explained by the Superintendent.
Food
No inmate shall receive or have in his possession any food other than that authorised 5–190
except—
(a) with the authority of the Superintendent; or
(b) with the authority of the medical officer, if a variation of diet is desirable on
medical grounds.
515
Occupational training
5–191 (1) Every inmate, unless excused by the medical officer on medical grounds, shall
from the beginning of his sentence be employed on suitable work calculated to assist
him in earning his livelihood on discharge.
(2) No inmate shall be employed on any work unless he has been certified by the med-
ical officer to be fit for work of that description.
(3) An inmate, upon his release from a training centre, may receive a cash grant in
accordance with an earnings scheme approved by the Commissioner.
Classification
5–192 The Commissioner shall classify all inmates, having regard to their character, previous
history and other relevant circumstances and shall arrange for each inmate to receive
his training at the training centre which is, in the opinion of the Commissioner, most
suitable.
Grades
5–193 Inmates shall be divided into such grades as the Commissioner may approve, and the
privileges of each grade shall be arranged by the Commissioner.
Leave of absence
5–194 (1) The Commissioner may grant any inmate leave of absence from a training centre
for a period not exceeding 5 days at any one time. Any inmate granted leave of absence
shall be given a pass in writing under the hand of the Commissioner setting out the
period during which the inmate is permitted to be absent from the training centre and
the address at which the inmate is to reside during his leave.
(2) Any inmate who without due cause does not return to the training centre at or
before the expiration of the period for which he has been granted leave shall be deemed
to have absconded from the training centre and shall be liable to be punished in the
manner prescribed by regulation 20.
Disciplinary offences
5–195 An inmate who commits any of the offences enumerated in rule 61 of the Prison Rules
(Cap 234 sub leg) as applied by section 8 of the Ordinance shall be guilty of a discip-
linary offence.
Investigation of offences, and awards, by officer in charge
5–196 (1) Every offence against discipline shall be reported forthwith and the officer-in-
charge shall investigate every report of such an offence not later than the following day,
unless that day is a Sunday or a public holiday.
(2) If upon investigation the officer-in-charge considers that the offence is proved, he
shall make one or more of the following awards—
(a) caution;
(b) deprivation of privileges for a period not exceeding 1 month;
(c) delaying promotion to a higher grade;
(d) stopping letters and visits for a period not exceeding 3 months;
(e) (Repealed LN 167 of 1983)
(f) deduction from earnings of the cost of any Government property lost or wil-
fully damaged; (GNA 13 of 1956)
(g) (Repealed LN 192 of 1990)
(3) For the purposes of paragraph (2), “privileges” – shall be taken to include associ-
ation, games and entertainments, and participation in an earnings scheme.
(4) An inmate may appeal to the Commissioner against an award made by the officer-
in-charge under paragraph (2), within 48 hours after the making of the award, by giving
516
notice in writing to the officer-in-charge, who shall forthwith notify the Commissioner
and stay execution of the award pending the determination of the appeal.
(5) The Commissioner may confirm, vary or reverse the award against which the ap-
peal is made or may substitute therefor any other award which the officer-in-charge was
(6) (Repealed LN 167 of 1983).
Report
No report against an inmate shall be dealt with by an officer of the training centre 5–197
except the officer-in-charge.
Inmate may be kept apart pending adjudication of offence
When an inmate has been reported for an offence the officer-in-charge may order 5–198
him to be kept apart from other inmates, pending adjudication.
Inmate given opportunity to defend against allegation of an offence
An inmate shall, before a report is dealt with, be informed of the offence for which he 5–199
has been reported and shall be given an opportunity of hearing the facts alleged against
him and of being heard in his defence.
E. Rehabilitation Centre Orders

General
The Rehabilitation Centres Ordinance (Cap 567) became law in 2002. It provides 5–200
for the establishment of centres to detain and rehabilitate offenders aged 14 years or
over and under 21 years. These centres cater for young people whose offences call for
a short custodial sentence, such as those without a bad criminal record and whose of-
fences are not of the most serious: HKSAR v Yu Pak Lun [2003] 2 HKLRD 568. It is also
an option for young men who are not physically fit for detention in a detention centre
and for young women who are not involved in vice-related offences.
Once a court concludes that a training centre order, which can last from six months
to three years, is not justified, and that the rehabilitation of the defendant cannot be
achieved through non-custodial means, such as community service or probation, it
may order the detention of the young offender in a rehabilitation centre.
The minimum period of detention in a rehabilitation centre is three months and
the maximum period is nine months. Between those parameters, the actual time in
custody is determined by the progress of the young offender whilst in detention.
Other things being equal, the length of a rehabilitation centre order may make it a
more attractive option for dealing with a young offender than, for example, a training
centre order, which is usually of about eighteen months’ duration: HKSAR v Tong Wing
Suet, Sharon [2012] 2 HKLRD E3.
The young person is initially sent to the centre for between two to five months.
Inmates will be trained in discipline, taught self-control and advised how to develop a
regular living pattern. Courses are available to inmates, whose progress is monitored
to determine when to move them to the second phase. At this point, the inmate will
live in a hostel or halfway house for between one to four months. He can undertake
out-side works, attend vocational and training courses, and take part in community
service programmes.
In Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, the purposes of or-
dering the detention of a defendant in a rehabilitation centre were said to include:
(a) deterring young offenders from committing further crimes;
(b) correcting the delinquent values and behaviour of young offenders;
(c) helping young offenders to develop socially acceptable behaviour and re-
spect for law;
517
(d) equipping young offenders with social and other skills;
(e) preparing young offenders for a successful reintegration into society upon
discharge.
In HKSAR v Cheung Ka Ho (HCMA 24/2007 [2007] HKEC 544), a rehabilitation
centre order was imposed in preference to other orders as the defendant required a
short, sharp period of punishment combined with career training. In HKSAR v Tsui
Hoi Yin (HCMA 23/2007), the defendant was in need of psychological training in a
structured environment, and was sent to the centre for the purposes of reformation.
In HKSAR v Chung Ka Wai [2018] 2 HKLRD 1090, a rehabilitation centre order was
approved for a young offender because he was “going astray”, and if his delinquency
was not corrected he was “very likely to go down the criminal path where there is no
turning back”.
After discharge from the centre, the young offender is subject to the supervision of
aftercare officers of the Correctional Services Department for one year.
(1) Legislation
Rehabilitation Centres Ordinance (Cap 567), s 4
Detention order
5–201 4.—(1) Subject to subsection (2), where a person who is apparently a young offender
is found guilty of a relevant offence, the court may, in lieu of any other sentence, make
a detention order against him if the court is satisfied that having regard to the character
and conduct of the person and the circumstances of the case, it would be in the interest
of the community and the person himself that he should undergo a period of detention.
(2) A detention order shall only be made against a person who—
(a) is, in the opinion of the court, not less than 14 but under 21 years of age on
the day of his conviction;
(b) is not serving and has not previously served a sentence of imprisonment;
(c) is not serving and has not previously served a sentence of detention in—
(i) a detention centre;
(ii) a training centre; or
(iii) an addiction treatment centre;
(d) is physically, mentally and medically fit to be detained in a rehabilitation
centre;
(e) is apparently an offender for whom a short-term custodial sentence is
appropriate; and
(f) is certified medically to be not drug dependent at the time of his conviction.
(3) A court may, after conviction of a young offender, remand him in the custody of
the Commissioner for such period, not exceeding 3 weeks, as the court thinks necessary
to enable the Commissioner to ascertain the suitability of the offender for detention and
the availability of a place for the offender in a rehabilitation centre.
(4) A young offender against whom a detention order is in force shall be detained
in a rehabilitation centre for such period, being a period in aggregate of not less than
3 months and not exceeding 9 months, as the Commissioner may determine.
(5) The period referred to in subsection (4) shall comprise the following—
(a) the initial detention period of not less than 2 months and not exceeding
5 months at a rehabilitation centre referred to in section 3(a); and
(b) the subsequent period of residence at a rehabilitation centre referred to
in section 3(b) for a duration of not less than 1 month and not exceeding
4 months.
(6) In determining the whole period of detention, the Commissioner shall take into
consideration—
(a) in relation to the initial detention period, the conduct and progress of the
young offender;
(b) in relation to the subsequent period of residence, the needs and progress of
the young offender.
(7) The references to “young offender” in subsections (4) and (6) do not affect the
power of the Commissioner to detain an offender in a rehabilitation centre notwith-
standing that the offender has reached the age of 21 years or more whilst a detention
order is in force against him.
518
Supervision Order
6.—(1) The Commissioner shall make a supervision order, that is to say, an order 5–202
which requires a person to be under the supervision of a correctional services officer
and to comply with conditions imposed in the order, for a fixed term of 1 year against
a person who is released from a rehabilitation centre after having served a sentence of
detention under a detention order.
(2) A supervision order shall specify—
(a) particulars of a correctional services officer whom the Commissioner desig-
nates to supervise the person;
(b) the date of release of the person from the rehabilitation centre concerned
and the date on which the supervision order shall expire; and
(c) such conditions as the Commissioner thinks fit.
(4) A person who fails to comply with a condition of a supervision order which has
been made against him commits an offence and is liable to a fine at level 2 and to im-
prisonment for 12 months.
(5) A person against whom a recall order has been made shall not be liable to be pros-
ecuted or convicted under subsection (4).
(6) A court may, instead of imposing a sentence under subsection (4), order that the
case be referred to the Commissioner and that a recall order be made against the person
by the Commissioner.
Recall order
7.—(1) Subject to subsection (4), the Commissioner may, if he is satisfied that a 5–203
person against whom a supervision order is in force has failed to comply with any con-
dition of the order, make a recall order against the person requiring him to return to a
rehabilitation centre.
(2) A person taken to a rehabilitation centre under subsection (1) may be detained
until the expiration of 9 months from the date of the coming into operation of the de-
tention order, or 3 months from the date of his being arrested under the recall order,
whichever is the later.
(3) The Commissioner may at any time release a person against whom the recall order
is in force.
(4) A recall order may not be made against a person who has been charged with an
offence under section 6(4) unless the court orders that such an order be made under
section 6(6).
Effect of imprisonment or further sentence of detention
8.—(1) If a person against whom a detention order, a supervision order or a recall 5–204
order is in force is on conviction of another offence—
(a) subject to a new detention order;
(b) sentenced to a term of imprisonment which is not suspended;
(c) sentenced to detention in a detention centre;
(d) sentenced to detention in a training centre; or
(e) sentenced to detention in an addiction treatment centre,
then the first-mentioned detention order, or the supervision order or recall order, as the
case may be, shall lapse.
(2) A detention order, a supervision order or a recall order made against any person
on whom a suspended sentence has been passed (whether made before or after the sus-
pended sentence was passed) shall lapse if that suspended sentence is ordered to take
effect.
Arrest, etc of persons unlawfully at large
9.—(1) Any police officer or correctional services officer may, if he reasonably sus- 5–205
pects that a detention order or recall order is in force against a person and that the
519
person is unlawfully at large, arrest, without warrant, the person and take him to a re-
habilitation centre.
(2) If a person who is liable to be arrested under this section forcibly resists the at-
tempt of a police officer or correctional services officer to arrest him, the officer (and
any person assisting the officer) may use all reasonable means necessary to make the
arrest.
(3) If a police officer or correctional services officer reasonably believes that a person
unlawfully at large is on particular premises, the person residing at or in charge of the
premises must, if the officer so requests, allow the officer to enter the premises to search
for the person unlawfully at large.
(4) Subject to subsection (5), if a police officer or correctional services officer—
(a) cannot obtain entry to premises as a result of a request under subsection
(3); or
(b) reasonably believes that a person unlawfully at large is on particular premises
but no person appears to be on the premises,
the officer may enter the premises and search them and, for that purpose, the officer
may break open any outer or inner door or window of the premises.
(5) The power conferred by subsection (4) may be exercised without a warrant only
if a warrant cannot be obtained without giving the person unlawfully at large an oppor-
tunity to evade arrest.
(6) If a person residing at or in charge of premises that a police officer or cor-
rectional services officer seeks to enter under subsection (3) requests the officer to
produce evidence of the officer’s authority or to specify the purpose of the entry, the
officer may exercise the powers conferred by that subsection only after complying with
the request.
(7) Any period during which a person against whom a detention order or recall
order is in force is unlawfully at large shall be disregarded in calculating the period
for which he may be detained under the detention order or recall order, as the case
may be.
(8) Any person who obstructs a police officer or correctional services officer in the ex-
ercise of any power under this section commits an offence and is liable to a fine at level
2 and to imprisonment for 3 months.
Transfers from rehabilitation centre to training centre or prison
5–206 10.—(1) If a young offender against whom a detention order is in force is reported to
the Chief Executive by the Commissioner to be—
(a) exercising a bad influence on other young offenders in the rehabilitation
centre; or
(b) incorrigible,
the Chief Executive may, if satisfied that the young offender could not be suitably
dealt with by any disciplinary proceedings provided by or under the regulations,
direct that the young offender be dealt with in the manner referred to in subsection
(2) or (3).
(2) The young offender may be transferred to a training centre; and for the purposes
of this Ordinance and the Training Centres Ordinance (Cap 280), he shall be deemed
to be a young offender who, on the day on which the detention order was made against
him, had instead been sentenced to detention in a training centre.
(3) The young offender may be detained in prison for such term as the Chief
Executive may, subject to subsection (4), determine, not exceeding—
(a) the unexpired part of the maximum period during which he might have
been detained in a rehabilitation centre; or
(b) the term of imprisonment to which he was liable for the relevant offence of
which he was convicted,
whichever be the less; and for the purposes of this Ordinance and the Prisons
Ordinance (Cap 234), such offender shall be treated as if he had been sentenced to im-
prisonment for the term so determined by the Chief Executive.
(4) The Chief Executive shall, before making a determination under subsection (3)—
(a) consult, where practicable, with the judge or magistrate who made the deten-
tion order; and
(b) take into consideration, so far as possible, the recommendations made by the
judge or magistrate, as the case may be.
520
Rehabilitation Centres Regulations (Cap 567A), reg 4
Reception of offenders
4.—The Commissioner shall, upon delivery to him of a detention order, cause to 5–207
be made all necessary arrangements for the reception of the offender named in the
detention order.

Medical examination
5.—Every offender shall, on the day of his admission or as soon as possible after his 5–208
admission to a rehabilitation centre, be separately examined by a medical officer.
Personal Record of offenders
6.—Every offender shall, as soon as possible after his admission, be interviewed by 5–209
the Officer-in-charge, who shall, with reference to rule 12 of the Prison Rules (Cap 234
sub leg), cause to be entered in the offender’s record such personal particulars as the
Officer-in-charge considers necessary.
Classification
7.—The Commissioner shall classify all offenders, having regard to their character, 5–210
previous history and other relevant circumstances and shall arrange for each offender
to receive his training at the rehabilitation centre which is, in the opinion of the
Commissioner, most suitable.
Training
10.—(1) Every offender, unless excused by a medical officer on medical grounds, 5–211
shall from the beginning of his sentence be engaged in suitable work calculated to assist
his reintegration into society on discharge.
(2) No offender shall be engaged in any work unless he has been certified by a med-
ical officer to be fit for work of that description.
(3) An offender upon his release from a rehabilitation centre, may receive a cash
grant in accordance with an earnings scheme approved by the Commissioner.
Religious services and instruction
11.—(1) The Officer-in-charge may, if satisfied that an offender belongs to a religious 5–212
denomination, if the offender so desires and it is reasonably practicable to do so, make
arrangements for the offender to attend appropriate religious services.
(2) The Officer-in-charge may, if satisfied that an offender belongs to a religious de-
nomination or has a genuine need for religious instruction, if the offender so desires
and it is reasonably practicable to do so, make arrangements for the offender to receive
appropriate religious instruction.
Board to make recommendations for offender’s promotion and discharge
12.—(1) The Commissioner shall appoint for each rehabilitation centre a Board of 5–213
Review consisting of the Superintendent and the Officer-in-charge of the centre and such
other officers as the Commissioner may select, to watch the behaviour of each offender
and to make recommendations for his promotion to a higher grade and discharge.
(2) The Board shall cause an offender to be brought before it once a month or as
more frequently as the Board considers necessary during his detention.
Functions of Board
13.—The functions of a Board shall be— 5–214
(a) to assess each offender’s progress and make recommendations to the
Commissioner concerning the offender’s promotion to a higher grade;
521
(b) to make recommendations to the Commissioner in respect of the transfer of
an offender to a training centre or prison;
(c) to make recommendations to the Commissioner relating to the release of
any offender having regard to the objective of securing the offender’s re-
habilitation and his reintegration into society, and the need to protect the
public from potential harm from the offender.

Supervision order
5–215 14.—(1) A supervision order against an offender shall be read and explained to, and
served on, the offender by the Officer-in-charge before the offender is released from a
rehabilitation centre.
(2) Where a condition of a supervision order against an offender is varied, the varied
order shall be read and explained to, and served on, the offender by the Officer-in-charge.
Conditions of a supervision order
5–216 15.—Conditions that may be specified for inclusion in a supervision order may relate
to matters referred to in Schedule 1.
Procedures relating to drug tests
5–217 16.—Where an offender is required under a condition of a supervision order to
supply a urine specimen for drug test, the procedures to be followed by officers are
those set out in Schedule 2.
Leave of absence
5–218 17.—(1) The Commissioner may grant to an offender permission to be absent
from a rehabilitation centre for a period not exceeding 5 consecutive days at any
one time.
(2) An offender permitted to be absent under subsection (1) shall be given a pass
signed by the Commissioner stating the period during which the offender is permitted
to be absent from the rehabilitation centre and the address at which the offender is re-
quired to reside during his absence.
(3) An offender who, without reasonable excuse, fails to return to the rehabilitation
centre at or before the expiration of the period for which he has been granted leave
5–219 18.—An offender who commits any of the offences enumerated in rule 61 of the
Prison Rules (Cap 234 sub leg) as applied by section 12 of the Ordinance shall be guilty
of a disciplinary offence.
Investigation of disciplinary offences, and awards, by the Superintendent
5–220 19.—(1) Every allegation of a disciplinary offence shall be reported forthwith to the
Superintendent and the Superintendent shall investigate every report of such an of-
fence not later than the following day, unless that day is a public holiday.
(2) If, upon investigation, the Superintendent determines that the disciplinary of-
fence is proved, he shall make one or more of the following awards—
(a) caution;
(b) forfeiture of privileges for a period not exceeding 1 month;
(c) demotion of grade;
(d) deduction from earnings of the cost of any Government property lost or wil-
fully damaged.
(3) For the purpose of subsection (2), “privileges” – shall be taken to include associ-
ation, games and entertainment.
522
(4) An offender may appeal to the Commissioner against a determination or an award
made by the Superintendent under subsection (2) within 48 hours after the making
of the determination or award, as the case may be, by giving notice in writing to the
Superintendent, who shall forthwith notify the Commissioner and stay execution of the
determination or award pending the outcome of the appeal.
(5) The Commissioner may confirm, vary or reverse the determination or award
against which the appeal is made or may substitute for such award any other award which
the Super-intendent was competent to make under subsection (2).
Report
20.—No report under section 19 against an offender shall be dealt with by an officer 5–221
of the rehabilitation centre except the Superintendent.
Offenders may be kept apart during adjudication of disciplinary offence
21.—When an offender has been reported for a disciplinary offence, the Officer-in- 5–222
charge may order him to be kept apart from other offenders, pending adjudication if
and only if he is satisfied—
(a) that such order is necessary to prevent collusion between the offender con-
cerned and other offenders in respect of the disciplinary offence in the
interest of the administration of justice; or
(b) that such order is necessary to protect the offender concerned from poten-
tial harm from other offenders, or vice versa.

Offenders given opportunity to defend against allegation of disciplinary offence
22.—An offender shall, before a report is dealt with, be informed of the disciplinary 5–223
offence for which he has been reported and shall be given an opportunity of hearing the
facts alleged against him and of being heard in his defence.
Rehabilitation Centres Regulations (Cap 567A), Schedule 1
Conditions of a supervision order
Conditions in a supervision order may include conditions relating to the offender’s— 5–224
(a) reporting requirements under the order;
(b) employment;
(c) schooling;
(d) place of residence;
(e) remaining within any geographical area;
(f) attendance for medical treatment;
(g) supplying his urine specimen for drug test if required;
(h) being or not being at a specified place at certain days or time of a day;
(i) refraining from abusing dangerous drugs;
(j) refraining from associating with persons who have any connection with the
offence for which he was sentenced or with any other offence of which he
was convicted; and
(k) refraining from visiting any place connected with the offence for which he
was sentenced or with any other offence of which he was convicted.
Rehabilitation Centres Regulations (Cap 567A), Schedule 2

Procedures relating to drugs tests
1. Where an offender is reasonably suspected to have abused any dangerous drugs 5–225
during the period when he is subject of a supervision order, the officer who has been
designated to supervise him may, after obtaining endorsement from the Superintendent,
require the offender to supply a urine specimen for drug test.
2. The officer shall serve a notice in Form 8 of Schedule 3 on the offender in the
presence of a witness who may be a family member of the offender or another officer.
3. If the offender upon whom a notice has been served does not wish to give consent for
supplying a urine specimen, he may indicate so in the acknowledgment form attached to
523
the notice and make written representations to the Commissioner stating his reasons why
the requirement is considered not justified within 48 hours after his receipt of the notice.
4. The Commissioner shall decide, having regard to all relevant circumstances,
whether the offender is required to supply his urine specimen and the decision of the
Commissioner shall be final.
5. The offender shall be informed of the decision of the Commissioner.
F. Reformatory School
General
5–226 Another sentencing option for young male offenders aged from seven to 15 (inclu-
sive) is the reformatory school. Operated by the Social Welfare Department, residen-
tial training is provided to help young offenders reform their behaviour and attitude.
The emphasis is on rehabilitation through education and training, and counselling
is available: see R v Tsui Kam Loi (HCMA 862/1989). Inmates can be granted leave of
absence so they may go to classes or other activities outside the school.
Boys stay at the school for between one and three years, depending on their be-
haviour. It is a lesser punishment than a training centre order or a detention centre
order, being more like a residential home, although the length of time spent there
(compared to a maximum of six months at a detention centre) may make it seem like
a harsher punishment to offenders.
An offender aged under 18 can be removed from reformatory school on the ap-
plication of the Director of Social Welfare to a drug addiction treatment centre. The
court should be satisfied that it is in the interests of both the offender and the commu-
nity that he should be sent there. There is an aftercare service provided to all young
offenders who leave reformatory school, including those leaving on licence.
(1) Legislation
Reformatory Schools Ordinance (Cap 225), s 10
Secretary for Health, Welfare and Food may establish reformatory schools
5–227 10.—(1) The Secretary for Health, Welfare and Food may, by order to be published in
the Gazette, establish one or more reformatory schools for the reformation of youthful
offenders. (Amended 80 of 1997 section 10; LN 106 of 2002)
(2) Every such order shall specify the premises in which the reformatory school to
which it refers shall be established, and shall state whether the same shall be used for
male or female offenders or both.
Any prison or part thereof may be declared a reformatory school
5–228 11.—The Secretary for Health, Welfare and Food, with the consent of the Secretary
for Security, in Council may declare any existing or future prison or part thereof to be a
reform-atory school within the meaning and for the purposes of this Ordinance.
Chief Executive may appoint officers to reformatory schools
5–229 12.—The Chief Executive may appoint to every reformatory school a superintendent
or manager and such other officers, either male or female, as may be deemed necessary,
and allow to the said officers such remuneration as he thinks proper.
Rules by Secretary for Health, Welfare and Food for reformatory schools
5–230 13.—The Secretary for Health, Welfare and Food may make rules providing for the fol-
lowing matters in connection with reformatory schools established under this Ordinance—
(a) all matters relating to the regulation and management of a reformatory
school and the maintenance of order and discipline therein;
(b) discharge of youthful offenders under sections 20 and 20A;
(c) the duties to be performed and powers to be exercised by—
524
(i) the superintendent and other officers including medical officers ap-
pointed under section 12; and
(ii) visitors appointed under section 14.

Visitors
14.—The Chief Executive may appoint one or more fit and proper person or persons 5–231
to be the visitor or visitors of reformatory schools, and may remove every such visitor and
appoint another in his stead.
Powers and duties of visitors
15.—(1) Every person so appointed and every judge of the High Court or District Court, 5–232
member of the Executive or Legislative Council or magistrate may enter at all times any re-
formatory school, and may make such inquiries or examination therein as to him appears
necessary, and also make such reports as are required by the Chief Executive.
(2) Any manager who at any time refuses admittance to any such visitor, or to any judge
of the High Court or District Court, or to any member of the Executive or Legislative
Council, or to any magistrate, or offers to him any hindrance or obstruction, shall be
liable on summary conviction to a fine of $50.
Section 16 Reformatory schools lawful places of detention
16.—Every reformatory school shall be a lawful place of detention for such youthful 5–233
offenders as are ordered to be detained therein, and shall be subject to be inspected and
reported on as herein provided.
Order of detention
17.—(1) When a youthful offender is convicted before any court of an offence pun- 5–234
ishable, in the case of an adult by a fine or by imprisonment, the court may, in lieu of
any such sentence of fine or imprisonment, order such offender to be detained in a re-
formatory school; and such order shall take effect as a sentence of detention for a period
of not less than 1 year and not more than 3 years, and in any case not longer than until
such offender attains the age of 18 years, and the powers conferred under section 20A
shall be exercisable upon the expiry of the said period of 1 year.
(2) Before a sentence of detention is passed, the court shall consider any report or
repres-entations made by or on behalf of the Director of Social Welfare on the youthful
offender’s physical and mental condition and his suitability for such sentence; and for
such purpose the court may remand the said offender in custody by order made under
subsection (4).
(3) An order of detention made in pursuance of this section may, if the court thinks
fit, be made to take effect either immediately or at a later date specified therein, regard
being had to the age or health of the youthful offender.
(4) If—
(a) an order of detention is made but is not to take effect immediately; or
(b) at the time specified for the order to take effect the youthful offender is unfit
to be sent to a reformatory school; or
(c) the school to which the youthful offender is to be sent cannot be ascertained
until inquiry has been made,
the court may make an order committing him either to custody in any place to which
he might be committed on remand or to the custody of a relative or other fit person or
institution named by the court and he shall be kept in that custody accordingly until he
is sent to a reformatory school in pursuance of the order of detention.
Religious persuasion of offender to be considered
18.—In selecting the place of detention to which a youthful offender is to be sent the 5–235
court shall have regard, so far as practicable, to the religious persuasion of the youthful
offender.
525
Duties and powers of manager
5–236 19.—(1) It shall be the duty of the manager of a reformatory school to report to the
Chief Executive immediately he considers it would be consistent with the welfare of a
youthful offender for him to be discharged from the custody of the school.
(2) The manager of a reformatory school to which a youthful offender under the
age of 10 years is sent, may, with the consent of the Chief Executive, board the offender
out with any suitable person until he reaches the age of 10 years and thereafter for such
longer period, with the consent of the Chief Executive, as the manager considers to be
advisable in the interests of the offender, subject to the exercise by the manager of such
powers as to supervision, recall and otherwise as may be prescribed by rules made by
the Secretary for Health, Welfare and Food; and where an offender is so boarded out
he shall nevertheless be deemed for the purposes of this Ordinance to be a youthful
offender detained in the reformatory school, and the provisions of this Ordinance shall
apply accordingly, subject to such necessary adaptations as may be made by order of the
Secretary for Health, Welfare and Food.

Discharge by Chief Executive
5–237 20.—The Chief Executive may at any time discharge a youthful offender from the
custody of any reformatory school.
Reformatory Schools Ordinance (Cap 225), s 20A
Discharge by Director of Social Welfare
5–238 20A.—(1) Subject to section 17(1), the Director of Social Welfare may discharge a
youthful offender from the custody of any reformatory school.
(2) The discharge of a youthful offender under subsection (1) may be on licence and the
licence may be in such form and may be subject to such conditions as the Director thinks fit,
and the Director may at any time revoke, or vary the conditions of, such licence.
(3) When a licence has been revoked, the Director may direct that the youthful of-
fender to whom it related shall report in person to such place as may be specified in the
direction; and if he fails so to report he may be apprehended without warrant by a police
officer and taken to that place.
(4) Where a licence has been revoked and the youthful offender concerned is not dis-
charged under subsection (1), any order made under section 26(1) shall revive and be
in force during the period for which the youthful offender is detained.
Reformatory Schools Ordinance (Cap 225), s 20B
Removal to another school
5–239 20B.—The Director of Social Welfare may at any time direct that a person detained in
a reformatory school be removed from one such school to another such school.
Power to apprentice offender
5–240 21.—(1) The manager of a reformatory school may, if the youthful offender consents
thereto and with the approval of the Chief Executive, bind any youthful offender de-
tained under this Ordinance as an apprentice notwithstanding that his period of deten-
tion has not expired.
(2) Any youthful offender who is bound as aforesaid and who absconds from the
service of his master shall be liable to be arrested without warrant and brought before
a court of competent jurisdiction and shall be liable to imprisonment for 3 months and
may be ordered by the court to return to the place in which he was detained before his
apprenticeship there to complete his period of detention:
Provided that such youthful offender shall not be detained longer than until he at-
tains the age of 18 years.
Leave of absence
5–241 22.—(1) The manager of a reformatory school may grant any youthful offender leave
of absence from the reformatory school for such periods as may be prescribed.
526
(2) A youthful offender granted leave of absence shall reside during his leave at the
address directed by the manager. Any youthful offender who contravenes the provisions
of this sub-section shall be liable to be punished in the manner prescribed by the rules
of the reformatory school.
(3) Any youthful offender who without due cause does not return to the reformatory
school at or before the expiration of the period for which he has been granted leave
shall be deemed to have escaped from the reformatory school and the provisions of sec-
tions 29 and 31 shall apply and the said youthful offender shall be liable to be punished
in the manner prescribed by the rules of the reformatory school.
Classes of instruction outside reformatory
23.—(1) The manager of a reformatory school may, in the interests of training, order 5–242
any youthful offender to attend any class of instruction or to participate in any other
activity outside the precincts of the reformatory school and conducted by persons other
than members of the staff of the reformatory school.
(2) Any youthful offender shall be deemed, while absent from the reformatory school
in pursuance of an order under this section, to be in legal custody.
Expenses of offenders
26.—(1) Any court having power to order a youthful offender to be sent to a reforma- 5–243
tory school shall have power to make orders on the parent of the youthful offender to
contribute for the whole or any part of the expenses of the youthful offender during the
period of detention such sums as the court may think fit and may of its own motion, or
on the application of any person, from time to time revoke or vary such orders or remit
wholly or partially any payment ordered to be made under this section.
(2) Any such order may be made on the complaint or application of the manager of
the reformatory school to which the youthful offender is ordered to be sent or on the
complaint or application of the Commissioner of Police and either at the time when the
youthful offender is ordered to be sent to the reformatory school or subsequently, and
the sums ordered to be contributed shall be paid to such persons as the court may name.
(3) A court having power to make an order for contribution under this section may
issue an order requiring the parent to attend and show cause why an order for contri-
bution should not be made, and an order for contribution under this section may be
made on a parent who, having been required to attend, has failed to do so, but, save as
aforesaid, no such order shall be made without giving the parent or guardian an oppor-
tunity of being heard.
(4) A court making an order for contribution under this section shall have regard to
the means of the person on whom such order shall be made.
(5) Any sums ordered to be contributed by a parent under this section may be re-
covered from him by distress or imprisonment in like manner as if the same were a fine
legally imposed on him by the court.
(6) Where an order for contribution has been made under this section the person
on whom such order has been made shall give notice of any change of address to the
Commissioner of Police and, if he fails to do so without reasonable excuse, he shall be
liable on summary conviction to a fine of $100.
Punishment of refractory offender
27.—Any youthful offender detained in a reformatory school who— 5–244
(a) wilfully neglects or wilfully refuses to conform to the rules thereof; or
(b) is guilty of wilful insubordination against the discipline thereof, shall be li-
able to be punished in the manner prescribed by the rules of the said re-
formatory school.

Power to order detention in training centre, etc or imprisonment
28.—(1) On an application being made on behalf of the Director of Social Welfare in 5–245
respect of a youthful offender who is unsuitable for further detention in a reformatory
527
school, a court or magistrate may order that such youthful offender be detained in a
training centre, a detention centre or a rehabilitation centre or may commute the unex-
pired part of his period of detention to such term of imprisonment as it may see fit not
exceeding the said unexpired period of detention.
(2) For the purpose of determining which order, if any, would be the more expe-
dient for the reformation of the youthful offender and for the prevention of crime, the
court may conduct such inquiry as it may see fit, including the hearing of the youthful
offender.
(3) An order for the detention of a youthful offender in a training centre shall take
effect as if it had been made under the provisions of the Training Centres Ordinance
(Cap 280).
(3A) An order under subsection (1) for the detention of a youthful offender in a
detention centre shall take effect as if it had been made under the Detention Centres
Ordinance (Cap 239).
(3AA) An order under subsection (1) for the detention of a youthful offender in a
rehabilitation centre shall take effect as if it had been made under the Rehabilitation
Centres Ordinance (Cap 567).
(3B) Before an order is made under subsection (1) for detention of a youthful of-
fender in a training centre, a detention centre or a rehabilitation centre, a court or a
magistrate shall consider a report of the Commissioner of Correctional Services on the
suitability of the youthful offender for detention in a training centre, a detention centre
or a rehabilitation centre and on the availability of places at training centres, detention
centres or rehabilitation centres.
(3C) On an application made under subsection (1) a court or magistrate shall re-
mand the youthful offender who is the subject of the application in the custody of the
Commissioner of Correctional Services for such period, not exceeding 3 weeks, as the
court thinks necessary to enable the Commissioner to form an opinion as to whether
or not the youthful offender is suitable for detention in a training centre, a detention
centre or a rehabilitation centre.
(4) For the purposes of this section, a youthful offender is unsuitable for further
detention if he has attained the age of 14 years and the Director of Social Welfare has
certified in writing that, in the opinion of the Director of Social Welfare, he is unsuitable
for such further detention by reason of any of the following—
(a) absconding;
(b) persistent refusal to conform to the rules of the reformatory school;
(c) wilful insubordination against the discipline of such school;
(d) such other conduct as renders him a bad influence on the other youthful
offenders detained in such school.
(5) For the purposes of this section, the definition of “youthful offender” in section
2 shall apply as if the words “under the age of 18 years” were substituted for the words
“under the age of 16 years”.
Reformatory Schools Ordinance (Cap 225), s 28A
Power to order removal to addiction treatment centre
5–246 28A.—(1) On an application being made on behalf of the Director of Social Welfare
in respect of a youthful offender detained in a reformatory school, a court or magistrate
may order that such youthful offender be removed from such school to an addiction
treatment centre.
(2) Before an order is made under subsection (1) a court or a magistrate shall con-
sider a report of the Commissioner of Correctional Services on the suitability of the
youthful offender for cure and rehabilitation and on the availability of places at addic-
tion treatment centres and on whether it is in the interest of the youthful offender and
in the public interest that such youthful offender should undergo a period of cure and
rehabilitation in an addiction treatment centre.
(3) An order under subsection (1) shall take effect as if it were a detention order made
under section 4(1) of the Drug Addiction Treatment Centres Ordinance (Cap 244).
(4) For the purposes of this section, the definition of “youthful offender” in section
2 shall apply as if the words “under the age of 18 years” were substituted for the words
“under the age of 16 years”. “Young person” – means a person of 14 years or upwards
and under the age of 16 years; and “youthful offender” – means any offender who, in the
absence of legal proof to the contrary, is, in the opinion of the court before whom such
person is brought or appears, 7 years of age or upwards and under the age of 16 years.
528
G. Orders against Parents or Guardians
(1) Legislation
Attendance at court of parent of child or young person charged with an offence, etc.
9.—(1) Subject to subsection (1A), where a child or young person is charged with any 5–247
offence or is brought before a court under the provisions of this or any other Ordinance,
his parent or guardian shall, unless the court otherwise orders, attend before the court
during all stages of the proceedings; and the court may compel the attendance of the
parent or guardian as if he were required as a witness in the proceedings.
(1A) If it appears to a court to be necessary to do so in the interest of a child or young
person, the court may require his parent or guardian to withdraw from the court.
(2) Where a child or young person is arrested, the police officer by whom he is ar-
rested or if the officer in charge of the police station to which he is brought shall, if the
parent or guardian lives within a reasonable distance and can be found, cause him to be
warned to attend at the court before which the child or young person will be brought.
Power to order parent to pay fine, etc. instead of child or young person
10.—(1) Where a child or young person is charged before any court with any offence 5–248
for the commission of which a fine, damages or costs may be imposed, and the court is
of opinion that the case would be best met by the imposition of a fine, damages, or costs,
whether with or without any other punishment, the court may in any case, and shall if
the offender is a child, order that the fine, damages, or costs awarded be paid by the
parent or guardian of the child or young person instead of by the child or young person,
unless the court is satisfied that the parent or guardian cannot be found or that he has
not conduced to the commission of the offence by neglecting to exercise due care of the
child or young person.
(2) Where a child or young person is charged with any offence, the court may order
his parent or guardian to give security for his good behaviour.
(3) Where a court thinks that a charge against a child or young person is proved, the
court may make an order on the parent or guardian under this section for the payment
of a fine, damages, or costs or requiring him to give security for good behaviour, without
proceeding to the conviction of the child or young person.
(4) No order shall be made under this section unless the parent or guardian has been
given opportunity of being heard.
(5) Any sums imposed and ordered to be paid by a parent or guardian under this section
or on forfeiture of any such security as aforesaid, may be recovered from him by distress or
imprisonment in like manner as if the order had been made on the conviction of the parent
or guardian of the offence with which the child or young person was charged.
(6) A parent or guardian may appeal against an order of a juvenile court under this
section in manner prescribed by Part VII of the Magistrates Ordinance (Cap 227), the
provisions of which Part shall apply to any such appeal.
Notes
Parents and guardians can therefore be compelled to attend the court hearing at 5–249
which their child is dealt with. They can also be ordered to give security for his good
behaviour or ordered to pay a fine instead of the child. Such fines, if not paid, and
the security if ordered forfeit, can be recovered by distress or imprisonment, as if the
parent or guardian had been convicted of the offence with which the child or young
person was charged.
H. Care and Protection Orders

General
Under section 15(1)(e) of the Juvenile Offenders Ordinance (Cap 226), a juvenile 5–250
court may make a care and protection order if an offender aged seven or over is in
need of such.
529
(1) Legislation
Protection of Children and Juveniles Ordinance (Cap 213), s 34
Powers of juvenile courts in relation to guardianship and custody and control of children and ju-
veniles in need of care and protection
5–251 34.—(1) A juvenile court, on its own motion or upon the application of the Director
of Social Welfare or of any person authorised by the Director of Social Welfare in
writing in that behalf either generally or specially or of any police officer upon being
satisfied that any person of or above the age of 7 years brought before the court or
any other person under the age of 7 years is a child or juvenile in need of care or
protection, may—
(a) appoint the Director of Social Welfare to be the legal guardian of such child
or juvenile; or
(b) commit him to the care of any person whether a relative or not, who is willing
to undertake the care of him, or of any institution which is so willing; or
(c) order his parent or guardian to enter into recognisance to exercise proper
care and guardianship; or
(d) without making such order or in addition to making an order under para-
graph (b) or (c), make an order placing him for a specified period, not
exceeding 3 years under the supervision of a person appointed for the pur-
pose by the court: provided that no order shall be made under paragraph
(a) without the consent of the Director of Social Welfare.
(1AA) In connection with any motion or application under subsection (1) in respect
of a child or juvenile the juvenile court—
(a) may require the child or juvenile to be brought before the court; and
(b) shall give such directions as it thinks fit for notifying a parent or guardian
(whose whereabouts is known) of that child or juvenile of the motion or
application.
(1A) (Repealed 68 of 1995 section 52)
(1B) A juvenile court shall, if practicable, forthwith send copies of—
(a) an order made under subsection (1)(a) or an order made under section
34C(1) discharging or varying such order—
(i) to the juvenile in relation to whom the order is made and to his parent
or guardian (other than the Director of Social Welfare) or, in the case
of a child, to his parent or guardian (other than the Director of Social
Welfare); and
(ii) to the Director of Social Welfare;
(b) an order made under subsection (1)(b) or (c) or an order made under
section 34C(1) discharging or varying such order—
or guardian or, in the case of a child, to his parent or guardian;
(ii) to the Director of Social Welfare; and
(iii) to the person or institution to whom or to which the order is directed
or to whose care the child or juvenile is committed;
(c) a supervision order made under subsection (1)(d) or an order under section
34C(2)—
or guardian or, in the case of a child, to his parent or guardian;
(ii) to the Director of Social Welfare; and
(iii) where the supervised person is required by the order, or was required
by the super-vision order before it was varied or discharged, to reside
with an individual or to undergo medical or surgical attention or treat-
ment by or under the direction of an individual or at any place, to the
individual or the person in charge of the place.
(2) For the purposes of this Ordinance, a child or juvenile in need of care or protec-
tion means a child or juvenile—
(a) who has been or is being assaulted, ill-treated, neglected or sexually
abused; or
(b) whose health, development or welfare has been or is being neglected or
avoidably impaired; or
530
(c) whose health, development or welfare appears likely to be neglected or
avoidably impaired; or
(d) who is beyond control, to the extent that harm may be caused to him or to
others, and who requires care or protection.
(4)
(a) Any person or institution to whose care a child or juvenile is committed
under this section shall, whilst the order is in force, have the like control
over the child or juvenile as the parent and shall be responsible for his main-
tenance, and the child or juvenile shall continue in the care of such person
or institution, notwithstanding that he is claimed by his parent or any other
person, and if any person—
(i) knowingly assists or induces, directly or indirectly, a child or ju-
venile to escape from the person or institution to whose care he is so
committed; or
(ii) knowingly harbours, conceals, or prevents from returning to such
person or institution, a child or juvenile who has so escaped or know-
ingly assists in so doing, he shall be guilty of an offence: Penalty: a fine
of $2500 and imprisonment for 6 months.
(b) Any court having power so to commit a child or juvenile shall have power to
make orders on the parent or other person liable to maintain the child or ju-
venile to contribute to his maintenance during such period as aforesaid such
sums as the court shall think fit, and may from time to time vary such orders.
(c) Any such order may be made on the complaint or application of the person
or institution to whose care the child or juvenile is for the time being com-
mitted or on the complaint or the application of the Director of Social
Welfare and either at the time when any order under subsection (1) is made,
or subsequently, and the sums contributed by the parent or such other
person shall be paid to such person or institution as the court may name,
and be applied for the maintenance of the child or juvenile or towards the
cost of conducting the institution as the case may be.
(d) Where any parent or other person has been ordered under this section to
contribute to the maintenance of a child or juvenile, he shall give notice of
any change of address to the court or to such person as the court may from
time to time direct and if he fails to do so without reasonable excuse, he shall
be guilty of an offence: Penalty: a fine of $500.
(5) Where the legal guardianship of any child or juvenile is vested in the Director of
Social Welfare he may, subject to any order to the contrary made by a juvenile court—
(a) make any order (including if he thinks fit an order for removal to and deten-
tion in a place of refuge) regarding the custody and control of the child or
juvenile which he thinks desirable in the interests of that child or juvenile;
(b) at any time require any person in whose custody the child or juvenile is or
appears to be to—
(i) produce the child or juvenile; or
(ii) furnish photographs of the person endangered and of himself, such
photographs to be taken not earlier than 6 months prior to the date of
being so required.
(5A) Any person who without reasonable excuse fails to produce any child or juvenile
when so required by the Director of Social Welfare pursuant to subsection (5)(b) com-
mits an offence and is liable to a fine of $2500 and to imprisonment for 6 months.
(5B) The Director of Social Welfare, any Assistant Director of Social Welfare and any
public officer authorised in writing for the purpose by the Director of Social Welfare,
either generally or specially, may at any reasonable time enter and visit the residence
of and interview any child or juvenile of whom the legal guardianship is vested in the
Director of Social Welfare under or by virtue of this Ordinance.
(6) An order under subsection (1)(a) which is in force at the commencement of
the Protection of Women and Juveniles (Amendment) Ordinance 1978 (32 of 1978) or
which is made on or after such commencement, shall, unless it previously ceases to have
effect, cease to have effect on the date the child or juvenile in relation to whom the
order was made attains the age of 21 or marries (with the consent of the proper person
prescribed in the Marriage Ordinance (Cap 181)) before that date.
531
(6A) An order under subsection (1)(b), (c) or (d) which is in force at the commence-
ment of the Protection of Women and Juveniles (Amendment) Ordinance 1978 (32
of 1978)—
(a) in relation to a male child or male juvenile, shall, unless it previously ceases
to have effect, cease to have effect on the date he attains the age of 16;
(b) in relation to a female, shall cease to have effect if she has attained the age
of 18 or, unless it previously ceases to have effect, on the date she attains the
age of 18 or marries (with the consent of the proper person prescribed in the
Marriage Ordinance (Cap 181)) before that date.
(6B) An order under subsection (1)(b), (c) or (d) made on or after the commence-
ment of the Protection of Women and Juveniles (Amendment) Ordinance 1978 (32 of
1978), shall, unless it previously ceases to have effect, cease to have effect on the date
the child or juvenile in relation to whom the order was made attains the age of 18 or
marries (with the consent of the proper person prescribed in the Marriage Ordinance
(Cap 181)) before that date.
(6C) Any reference in this Ordinance to a child or juvenile in relation to whom an
order under subsection (1) has been made shall, while the order remains in force, be
construed as including a reference to the same person notwithstanding that in the
meantime he has ceased to be a child or juvenile.
(7) (Repealed 25 of 1993 section 6).
Protection of Children and Juveniles Ordinance (Cap 213), s 34A
Power to include requirements in supervision orders
5–252 34A.—A supervision order may require the supervised person to comply during the
whole or any part of the duration of the supervision order with such requirements,
including requirements as to residence or medical or surgical attention or treatment
giving due consideration to the wishes (if any) of the parent or guardian of the super-
vised person notified under section 34(1AA)(b), as the juvenile court, having regard to
the circumstances of the case, considers necessary for securing the adequate care, pro-
tection and control of the supervised person.
Protection of Children and Juveniles Ordinance (Cap 213), s 34B
Duty of supervisor
5–253 34B.—While a supervision order is in force it shall be the duty of the supervisor to
advise, assist and befriend the supervised person.
Protection of Children and Juveniles Ordinance (Cap 213), s 34C
Discharge or variation of orders under s 34(1)
5–254 34C.—(1) Subject to subsection (5), a juvenile court may at any time on its own mo-
tion, or upon the application of a parent or guardian, or of any person or institution
to whose care a child or juvenile has been committed, discharge or vary an order made
under section 34(1)(a), (b) or (c).
(2) Subject to subsection (5), a juvenile court may at any time upon the application
of the supervisor or the supervised person discharge or vary a supervision order and any
such variation may include—
(a) the cancellation of any requirement included in it; or
(b) the insertion in it (either in addition to or in substitution for any of its provi-
sions) of any requirement which could have been included in it.
(3) In dealing with any matter relating to the discharge or variation of an order made
under section 34(1), the juvenile court may require the presence before it of the child
and the parent or guardian of the child, or may require the presence before it of the ju-
venile, as the case may be, and subject to subsection (4) a court shall not make an order
under this section unless the child (other than a child under the age of 7 years) and the
parent or guardian of the child, or the juvenile, is present before it.
(4) A juvenile court may make an order under this section in the absence of the child
and the parent or guardian of the child, or the juvenile, if the effect of the order is con-
fined to one or more of the following—
(a) discharging the order;
(b) reducing the duration of the order or any requirement included in it;
(c) cancelling a requirement included in the order.
532
(5) Where an application under this section for the discharge of an order is dismissed,
no further application for its discharge shall be made under this section by any person
during the period of 3 months beginning with the date of the dismissal except with the
consent of a juvenile court.
(6) Upon any application under subsection (1) for the discharge or variation of an
order made under section 34(1)(a) appointing the Director of Social Welfare to be the
guardian of a child or juvenile, the juvenile court shall have power, whether or not it dis-
charges the order of appointment, to make any order as to the custody or control of or
access to the child or juvenile as it considers to be for the benefit of the child or juvenile
and may discharge or vary any order or requirement made under section 34(5) by the
Director of Social Welfare.
Protection of Children and Juveniles Ordinance (Cap 213), s 34D
Contraventions of supervision orders
34D.—Where a supervised person fails to comply with any requirement imposed by 5–255
a super-vision order, the supervisor may make an application to a juvenile court under
section 34C(2) for an order to be made under that section.
Protection of Children and Juveniles Ordinance (Cap 213), s 34E
Detention of child or juvenile in place of refuge
34E.—(1) Subject to subsection (1A), any person authorised in writing by the Director 5–256
of Social Welfare or any police officer of the rank of station sergeant or above may take
to a place of refuge or such other place as he may consider appropriate any child or
juvenile—
(a) who appears to be in need of care or protection; or
(b) in relation to whom there is in force an order under section 34(1) and who
is the subject of a motion or application under section 34C.
(1A) The power conferred by subsection (1)(a) shall not be exercised in respect of a
child or juvenile who appears to be in need of care or protection by virtue only of any
matter referred to in section 34(2)(b) or (c), unless—
(a) the child or juvenile has within the preceding 2 weeks, been assessed by a
medical practitioner, clinical psychologist or an approved social worker pur-
suant to section 45A;
(b) a notice issued and served under section 45A(1)(a) within the preceding
one month in respect of the child or juvenile has not been complied with as
regards the pro-duction of the child or juvenile for an assessment; or
(c) the Director of Social Welfare is unable to ascertain the identity or where-
abouts of any of the persons on whom notice may be served pursuant to
section 45A(1)(a) for the purposes of an assessment of the child or juvenile.
(2) Subject to this section, a child or juvenile who is taken to a place of refuge or
other place under subsection (1), or who has taken refuge in a place of refuge, may be
detained there until the child or juvenile can be brought before a juvenile court.
(3) Within 48 hours after a child or juvenile is taken to a place of refuge or other place
under subsection (1), or takes refuge in a place of refuge, an application in relation to
that child or juvenile shall be made to a juvenile court under section 34(1) or 34C, as the
case may be, if no such application has already been made.
(4) Notwithstanding anything contained in section 34(1), where an application is
made to a juvenile court under that section or under section 34C the court may, whether
or not the child or juvenile in relation to whom the application is made is before the
court, order the detention or continued detention of the child or juvenile in a place
of refuge for a period not exceeding 28 days from the date of the order in the first in-
stance in order that further inquiries may be made about the child or juvenile, and, if
necessary for that purpose, may during the continuance in force of such order make
further orders of detention for such period or periods as the court thinks fit, provided
that the total period of continuous detention does not at any time exceed an aggregate
of 56 days.
(5) Where a child or juvenile is detained in a place of refuge in pursuance of this
section, the person in charge of the place of refuge shall have the like control over the
child or juvenile as the parent and shall be responsible for his maintenance, and the
child or juvenile shall continue in the care of the person in charge of the place of refuge,
notwithstanding that he is claimed by his parent or any other person.
533
(6) The Director of Social Welfare or any officer generally or specially authorised for
that purpose in writing by the Director of Social Welfare may enter any premises for
the purpose of removing any child or juvenile liable to be dealt with under subsection
(1) but such entry shall not be effected by the use of force unless the Director of Social
Welfare or authorised officer has first obtained a warrant issued by a magistrate, juvenile
court or District Court under subsection (7) for that purpose.
(7) A magistrate, juvenile court or District Court may issue a warrant to the Director
of Social Welfare, or any officer authorised under subsection (6), to enter by the use of
force if necessary any premises for the purposes mentioned in that subsection if that
magistrate, juvenile court or District Court is satisfied by information on oath that there
are reasonable grounds for suspecting that—
(a) there is in the premises a child or juvenile who is liable to be dealt with under
subsection (1); and
(b) the entry can only be effected by the use of force.
(8) Any person who enters any premises under subsection (6) shall—
(a) if so required, produce evidence of his identity; and
(b) if a warrant has been issued under subsection (7)—
(i) produce the warrant or a copy of the warrant; and
(ii) in effecting entry, use only such force as is reasonably necessary.
Protection of Children and Juveniles Ordinance (Cap 213), s 34F
Detention in hospital
5–257 34F.—(1) Where any of the circumstances set out in subsection (1)(a) or (b) of
section 34E apply in relation to a child or juvenile, any person mentioned in that sub-
section who is of the opinion that that child or juvenile is in need of urgent medical or
surgical attention or treatment may take the child or juvenile to a hospital instead of to
a place of refuge.
(2) A child or juvenile who is admitted to a hospital after being taken there under sub-
section (1) may be detained by the Director of Social Welfare in that hospital for so long
as the attendance of the child or juvenile at that hospital is necessary for the purpose of
medical or surgical attention or treatment and thereafter the Director of Social Welfare
may take him to a place of refuge.
(3) Where a child or juvenile is taken to a place of refuge under subsection (2),
section 34E(2), (3), (4) and (5) shall apply as if he had been taken to a place of refuge
under section 34E(1).
(4) Where a child or juvenile is detained in a hospital under subsection (2), the
Director of Social Welfare shall have the like control over, and responsibility for
maintenance of, that child or juvenile as a person in charge of a place of refuge
under section 34E would have had if the child or juvenile had been detained in that
place of refuge.
I. Supervision after Release

General
5–258 After a young offender is released from detention, the legislative scheme is to pro-
vide support for reintegration into society through supervision.
(1) Legislation
Juvenile Offenders Ordinance (Cap 226), s 14A
Supervision Order
5–259 14A.—(1) The Director of Social Welfare may make a supervision order against a
child or young person who is released from a place of detention after having been de-
tained for less than six months under a detention order.
(2) A supervision order shall contain conditions that—
(a) for a period from the date of his release until the expiration of 6 months
from the date of the detention order the child or young person shall be
subject to supervision by such organisation or person as may be specified
therein; and
534
Sect. IV] Discharge Binding Over and Community Orders § 5–265
(b) the child or young person shall, while under such supervision comply with
such requirements, including requirements as to residence, as may be speci-
fied therein.
(3) The Director of Social Welfare may at any time vary or cancel a supervision order.
Juvenile Offenders Ordinance (Cap 226), s 14B
Recall order
14B.—(1) The Director of Social Welfare may, if he is satisfied that a child or young 5–260
person against whom a supervision order is in force has failed to comply with any condi-
tion or requirement of or made under the order, make a recall order against such child
or young person requiring him to return to a place of detention, and thereupon such
child or young person may be arrested and taken to a place of detention.
(2) A child or young person who has returned or been taken to a place of detention
under subsection (1) may be detained until the expiration of six months from the date
of the detention order.
(3) The Director of Social Welfare may at any time release any such child or young
person, and a further supervision order shall not be made in respect of such child or
young person.
Juvenile Offenders Ordinance (Cap 226), s 14C
Meaning of young person in sections 14A and 14B
14C.—For the purposes of sections 14A and 14B, “young person” includes a person 5–261
who attains the age of 16 years during the period of six months after the date of the
detention order.
See also §5–328, below, for supervision orders on people aged under 25 after they are
released from prison.
J. Probation
See §§5–309 et seq, below. 5–262
K. Drug Addiction Treatment Centre Orders

L. Discharge
IV. DISCHARGE, BINDING OVER AND COMMUNITY ORDERS
A. Discharge
(1) Legislation
Power to permit conditional release of offenders

107.—(1) Where any person has been convicted on indictment of any offence pun- 5–265
ishable with imprisonment, and the court is of the opinion that, having regard to the
character, antecedents, age, health or mental condition of the person charged, or to
the trivial nature of the offence, or to the extenuating circumstances under which the
offence was committed, it is inexpedient to inflict any punishment or any other than a
nominal punishment, the court may, in lieu of imposing a sentence of imprisonment,
make an order discharging the offender conditionally on his entering into a recogni-
sance, with or without sureties, to be of good behaviour and to appear for sentence when
called on at any time during such period, not exceeding 3 years, as may be specified in
the order.
535
(2) The court may, where it makes an order under this section, further order that the
offender shall pay such costs of the proceedings as the court thinks reasonable.
Provision in case of offender failing to observe conditions of release
5–266 108.—(1) In any such case the court or a magistrate, if satisfied by information on
oath that the offender has failed to observe any of the conditions of his recognisance,
may issue a warrant for his apprehension, or may, if it or he thinks fit, instead of issuing
a warrant in the first instance, issue a summons to the offender and his sureties (if any)
requiring him or them to attend at such court as may be specified in the summons.
(2) The offender, when apprehended, shall, if not brought forthwith before the
court, be brought before a magistrate.
(3) The magistrate before whom an offender on apprehension is brought of before
whom he appears in pursuance of such summons as aforesaid, may remand him in cus-
tody or on bail until he can be brought before the court.
(4) An offender so remanded to custody may be committed during remand to a
prison, or if he is a child or young person under the age of 16, to a place of detention
provided under the Juvenile Offenders Ordinance (Cap 226).
(5) The court, on being satisfied that a person bound by his recognisance to appear for
conviction and sentence has failed to observe any condition of his recognisance, may forth-
with, without further proof of his guilty, convict and sentence him for the original offence.
Power to permit conditional release of offenders
5–267 36.—(1) Where any person is charged before a magistrate with an offence punishable
on summary conviction, and the magistrate thinks that the charge is proved but is of the
opinion that, having regard to the character, antecedents, age, health or mental condi-
tion of the person charged or to the trivial nature of the offence or to the extenuating
circumstances under which the offence was committed, it is inexpedient to inflict any
punishment or any other than a nominal punishment, the magistrate, after conviction,
may make an order either—
(a) discharging the offender absolutely; or
(b) discharging the offender conditionally on his entering into a recognisance,
with or without sureties, in a sum not greater than $2,000, to be of good be-
haviour and to appear for sentence when called on at any time during such
period, not exceeding 3 years, as may be specified in the order.
(2) The magistrate may, where he makes an order under this section, further order
that the offender shall pay such costs of the proceedings (not exceeding $2,000 or, if a
higher limit is fixed by any enactment relating to the offence, that higher limit) as he
thinks reasonable.
(3) An order made by a magistrate under this section shall, for the purpose of revest-
ing or restoring stolen property and of enabling the magistrate to make orders as to the
restitution or delivery of property to the owner and as to the payment of money upon
or in connection with such restitution or delivery, have the like effect as a conviction.
(4) The magistrate may order the defendant in default of compliance with any order
made under subsection (2) to be imprisoned for 6 months.
(2) Notes on discharge

General
5–268 The jurisdiction to discharge an offender derives solely from statute. The Court
of First Instance and the District Court can therefore not grant an absolute dis-
charge: R v Currency Brokers (HK) Ltd [1987] HKLR 1136. The one exception
is when the Court of First Instance is dealing with a magistrate’s appeal under
section 119(d) of the Magistrates Ordinance (Cap 227), and the power exercised
by a magistrate at trial is conferred on a single judge. All criminal courts can grant
a conditional discharge.
A conditional discharge differs from a bind over in that the subject is discharged
subject to a condition that the offender commits no further offence during the
536
operative period. A bind over to come up for judgment when called is more like a sen-
tence conditionally deferred. The consent of the accused is not required for a condi-
tional discharge, whereas it is required for a bind over. The higher courts also possess
an inherent power to bind over an accused on recognisance to come up for judgment
and be of good behaviour in the meantime.
A conditional discharge can only be granted after the accused has been found
guilty: R v Chan Kuen Ming [1983] 2 HKC 598. The order can be appealed in the usual
way. The only conditions that can be attached are that the accused is to behave himself
and he will present himself for sentence if required. The court cannot introduce any
other condition or requirement.
The length of the conditional discharge can be up to three years.
If the accused breaches his recognisance, section 108 of the Criminal Procedure
Ordinance (Cap 221) comes into play as regards the higher courts and subsection
(4) of section 36 of the Magistrates Ordinance.
A conditional discharge requires to be considered as a “sword of Damocles” hanging
over the head of the accused, and not as a “let off”: R v Yu Kau [1963] HKLR 367. It
is not appropriate for cases which are not trivial and carry moral culpability, and in
which the public interest requires condign punishment: HKSAR v Chu Frankly [2018]
HKCFI 2072 [249], [HKC] 6 HKC 229.
An absolute discharge is usually used where there is a lack of moral blameworthi-
ness on the part of the offender, or for reasons of extreme triviality of offence: Secretary
for Justice v Tse Sheung Kai [2001] 3 HKLRD 487.
Procedure
If the court is contemplating imposing a conditional discharge, its effect should be 5–269
explained to the defendant. However, a failure to do so does not invalidate the order,
provided that counsel gives an undertaking to explain the effect to the defendant: see
R v Wehner (1977) 65 Cr App R 1, CA.
Combined with other orders

A conditional discharge may not be combined with another penalty for the same of- 5–270
fence: R v Savage (1983) 5 Cr App R (S) 216. Either type of discharge cannot be com-
bined with a custodial sentence, fine or community service order: R v Sanck (1990-91)
12 Cr App R (S) 155, CA. However, if the accused faces several charges, the court may
grant a discharge on one count, combined with another sentence on other counts: R
v Bainbridge (1979) 1 Cr App R (S) 36.
An absolute discharge should not be combined with any other penalty, except for
an order for costs under subsection (2) of section 36 of the Magistrates Ordinance: R
v Hunt [1978] Crim LR 697. However, another penalty may be imposed for a different
charge dealt with on the same occasion.
B. Binding Over
Summary
The court has power to bind over complainants, informants, witnesses, the accused 5–271
and anyone else likely to disturb the peace. The object is not to punish past behaviour
but to prevent future breaches of the peace. As long as there is evidence that reason-
ably leads the court to fear that without a recognisance there could be a breach of the
peace, the court can bind over a person before it, even if he has been acquitted or the
prosecution has been discontinued.
The following procedures are to be followed in making a bind over order against
an acquitted defendant, witness or a litigant in a civil case: Lau Wai-wo v HKSAR (2003)
6 HKCFAR 624 (CFA):
(1) There must be facts from which it can be properly inferred that there is a danger
of the person concerned committing a breach of peace in the future. It is not
necessary for those facts to be part of the order or to appear on the face of the
record provided they are set out in the judgment.
537
(2) It is essential that such person be given prior notice of the proposal. In general, a
failure to do so will invalidate the order. The length of the notice will depend on
the circumstances but it must at least be sufficient to enable him to take legal advice
and to be legally represented.
(3) The court should not fix the sum in which the person concerned is to be bound-
over without first satisfying itself that he can reasonably be expected to be able to
pay it. Whilst this will usually require some inquiry as to his means, this will not be
necessary where the amount is trivial by any standards.
A binding over may be desirable where there has been no criminal conduct as yet,
but a future breach of the peace is likely: Tse Wai Piu v Att-Gen (HCMA 184/84). The
matters complained of must be clearly set out in the summons and must be proved to
the usual criminal standard: Ex p Ward (1992) 95 Cr App R 215 and Percy v DPP [1995]
3 All ER 124.
A breach of the peace is limited to violence or the threat of violence: R v Lam Mun-
fai [1983] 1 HKC 614.
The exercise of the power to make bind-over orders should comply with current
standards of legal certainty and natural justice. See §19–56, below. Conduct that justi-
fies a bind over to keep the peace must involve violence to person or property, or the
threat of such violence, or give rise to a reasonable apprehension that such violence
will take place. Conduct that justifies a bind over to be of good behaviour must in-
volve the commission of the actus reus of a criminal offence, or the threat of such act,
or be conduct giving rise to a reasonable apprehension of the commission of a crim-
inal offence. In some cases, both types of bind over can be made. Second, the order
should be expressed in terms that makes it clear what the bound over person is to be
prohibited from doing, in the same way as an injunction: Lau Wai-wo v HKSAR (2003)
6 HKCFAR 624 (CFA).
(1) Legislation
Criminal Procedure Ordinance (Cap 221), s 109l
Power to bind over to keep the peace

5–272 109l.—A judge, a District Judge or a magistrate shall have, as ancillary to his jurisdic-
tion, the power to bind over to keep the peace, and power to bind over to be of good
behaviour, a person who or whose case is before the court, by requiring him to enter
into his own recognisance or to find sureties or both, and committing him to prison if
he does not comply.
Exercise on complaint of power to bind over to keep the peace
5–273 61.—(1) The power of a magistrate, on complaint of any person, to adjudge a
person to enter into a recognisance and find sureties to keep the peace or to be of
good behaviour towards such first-mentioned person shall be exercised by an order
upon complaint, and the provisions of this Ordinance shall apply accordingly, and
the complainant and defendant and witnesses may be called and examined and cross-
examined, and the complainant and defendant shall be subject to costs, as in the case
of any other complaint.
(2) The magistrate may order the defendant, in default of compliance with such last-
mentioned order, to be imprisoned for 6 months.
Offences Against the Person Ordinance (Cap 212), s 58
Awarding of fine and sureties for keeping the peace
5–274 58.—Wherever any person is convicted of any indictable offence punishable under
this Ordinance otherwise than with death, the court may, in addition to or in lieu of any
punishment authorised by this Ordinance, fine the offender, and require him to enter
into his own recognisance and to find sureties, both or either, for keeping the peace and
being of good behaviour:
Provided that no person shall be imprisoned for not finding sureties under this
section for any period exceeding 1 year.
538
(2) Notes on binding over
Use of the power
The principle power to bind persons over is conferred by section 109I of the 5–275
Criminal Procedure Ordinance (Cap 221). However, other statutory provisions are
also relevant. First, the provisions of ss 61, 62 and 63 of the Magistrates Ordinance
(Cap 227), insofar as they are relevant to a case where a magistrate is acting on his own
motion, should be regarded as constituting statutory guidance as to the manner in
which he should exercise his power. Secondly, s 36 of the Magistrates Ordinance and
section 107 of the Criminal Procedure Ordinance, which apply where a defendant
has been convicted, should be regarded as providing analogous statutory guidance
as to the exercise of the bind over power in cases where there has not been a con-
viction of the person bound over. The $2,000 limit in s 36(1)(b) of the Magistrates
Ordinance should be regarded as applicable, and the three-year bind-over period in
section 107(1) of the Criminal Procedure Ordinance should not be exceeded: Lau
Wai Wo v HKSAR (2003) 6 HKCFAR 624 (CFA).
The use of the power to bind over does not depend on a conviction: it may be used 5–276
against a person who has been acquitted by a jury or on appeal: see R v Sharp (1957) 41 Cr
App R 86 (in which a successful appellant against conviction was bound over by the Court
of Criminal Appeal); or against a witness who has given evidence: see Sheldon v Bromfield JJ
[1964] 2 QB 573, DC, but a person who has given a witness statement in a case in which
the prosecution has offered no evidence is not “a person who or whose case is before the
court” and may not be bound over: R v Swindon Crown Court, Ex p Pawittar Singh [1984] 1
WLR 449, DC. Binding over a witness is “a serious step” which should be taken only “where
facts are proved by evidence before the court which indicate the likelihood that the peace
will not be kept. Such cases … will be exceedingly rare” (per Stephen Brown LJ in Ex p
Pawittar Singh, above). It is not possible to include specific conditions in an order binding
a person over to keep the peace: R v Randall (1986) 8 Cr App R (S) 433, CA.
Section 58 of the Offences Against the Person Ordinance (Cap 212), provides for
an accused after conviction for an indictable offence under that Ordinance being
required to enter a recognisance and/or to find sureties for keeping the peace and
being of good behaviour. This is not used often but, when it is, it should should be
administered in the same way as any other bind over.
Procedure
There is a distinction between the making of a bind-over order, which does not 5–277
require the consent of the person concerned, and the entry into the appropriate re-
cognisance to make the order effective, which requires some volition. The position
under section 109I is that:
(1) no consent is needed to the making of the bind-over order itself;
(2) such order will require the person against whom it is made to enter into his own
recognisance, or to find sureties, or both, with the sanction of committal to prison
if he does not comply;
(3) if the person consents to being bound over in the terms contained in the order, that
consent may be taken to constitute entry into his own recognisance and the bind
over will be effective with nothing more needing to be done;
(4) if the person concerned does not express his consent to the bind over, and refuses
or fails to enter into the recognisance, he will be in contempt.
It is therefore correct to say that the bind over order cannot become effective
without the consent of the person concerned. But it is not true to say that the bind-
over order cannot be made without the consent of the person concerned: Lau Wai-wo
v HKSAR (2003) 6 HKCFAR 624 (CFA).
The bind over should be finite but it is at the court’s discretion.
Procedure when breach of recognisance is alleged

Where a person who has been bound over to keep the peace is proved to have bro- 5–278
ken the terms of the recognisance, the court has a power to estreat the recognisance
539
by ordering the person to pay the amount of the recognisance, but there is no power
to impose a sentence of imprisonment or otherwise for the offence itself: see R v
Gilbert (4 April 1974). The standard of proof is the civil standard: R v Marlow JJ, Ex p
O’Sullivan [1984] QB 381.
C. Community Service Orders

(1) Legislation
Community Service Orders Ordinance (Cap 378), s 4
Power to make community service orders

5–279 (1) Where a person of or over 14 years of age is convicted of an offence punishable
with imprisonment, the court which sentences him for that offence may make an order
requiring him to perform, during the life of the order, unpaid work in accordance with
this Ordinance for such number of hours, not exceeding 240, as may be specified in
the order.
(2) A community service order may be made against an offender
(a) in addition to any other sentence that the court imposes; or
(b) instead of any other sentence that the court may impose, unless such other
sentence is mandatory.
(3) A court shall not make a community service order against an offender unless—
(a) the offender consents to the making of such an order; and
(b) the court is satisfied—
(i) after considering a report by a probation officer about the offender
and his circumstance and, if the court thinks it necessary, hearing a
probation officer, that the offender is a suitable person to perform
work under such an order; and
(ii) that provision can be made for the offender to perform work under
such an order.
(4) More than one community service order may be made by one or more courts in
respect of the same offender so as to be in force at the same time provided that the total
number of hours that remain to be spent by the offender in performing work under the
orders does not at any time exceed 240.
(5) Before making a community service order the court shall explain to the offender
in ordinary language—
(a) the purpose and effect of the order and in particular the conditions and the
requirements of section 6(1);
(b) the consequences which may follow under section 8 if he fails to comply with
any of those conditions and requirement or under section 9 if he commits an
offence during the period of the community service order; and
(c) that the court has under section 10 the power to review the order on applica-
tion either of the offender or of the supervising probation officer.

Contents and copies of community service orders
5–280 5.—(1) A court which makes a community service order—
(2) The principal probation officer shall ensure that a copy of any community service
order which is sent to him under subsection (1)(c) is supplied to the offender’s super-
vising probation officer.
(3) An offender’s supervising probation officer shall be—
(a) the probation officer appointed or assigned to the area in which the offender
from time to time resides, or such other probation officer as the principal
probation officer nominates; and
(b) (Repealed 68 of 1995 section 54).

Obligations of offenders under community service orders, etc.
5–281 6.—(1) Where a community service order is in force against an offender, he shall—
(a) perform, for the number of hours specified in the order, such work and at
such times as may be directed by his supervising probation officer;
540
(b) perform that work in a satisfactory manner;
(c) comply with any conditions and requirements specified in the order under
section 5(1);
(d) comply with any reasonable direction of his supervising probation officer
including any direction designed to enable that officer to provide rehabilita-
tive counselling and guidance; and
(e) immediately notify his supervising probation officer of any change in his
address.
(2) The directions given by a supervising probation officer for the purposes of sub-
section (1) shall, so far as practicable, take account of the offender’s religious beliefs
and the times, if any, when he normally works or attends a school or other educational
establishment.
(3) The type of work that an offender may be required to perform under a commu-
nity service order shall be that specified in the Schedule.
Duration of community service orders
7.—A community service order shall remain in force against an offender until— 5–282
(a) the offender has performed the work required under it for the number of
hours specified in it;
(b) the expiration of a period of 12 months commencing on the date on which
the order was made or, where that period is extended under section 10(1),
the expiration of that period as so extended; or
(c) the order is revoked under section 8, 9 or 10, whichever first occurs.

Breach of section 6
6.—(1) An offender who fails to comply with section 6(1) (whether by reason of a 5–283
failure satisfactorily to comply with the conditions or requirements of his community
service order, or otherwise) may be dealt with in accordance with this section.
(2) If at any time while a community service order is in force in respect of an offender
it appears on information to a magistrate that the offender has failed to comply with
section 6(1), the magistrate may issue a summons requiring the offender to appear be-
fore a magistrate at the time specified therein, or may, if the information is in writing
and on oath, issue a warrant for his arrest.
(3) If it is proved to the satisfaction of the magistrate before whom an offender ap-
pears or is brought under this section that he has failed without reasonable excuse to
comply with section 6(1) the magistrate may, without prejudice to the continuance of
the order, impose on him a fine not exceeding $1000 or may—
(a) if the community service order was made by a magistrate revoke the order
and deal with the offender, for the offence in respect of which the order
was made, in any manner in which the offender could have been dealt with
for that offence by the magistrate who made the order if the order had not
been made;
(b) if the order was made by the Court of First Instance or District Court, commit
the offender to custody or release him on bail (with or without sureties) until
he can be brought or appear before the Court of First Instance or District
Court, as the case may be.
(4) Where a magistrate deals with an offender’s case under subsection (3)(b)—
(a) the magistrate shall send to the Court of First Instance or District Court a
certificate signed by the magistrate certifying that the offender has failed to
comply with section 6(1) in the respect specified in the certificate, together
with such other particulars of the case as are in the opinion of the magistrate
desirable, and a certificate purporting to be so signed shall upon its produc-
tion be admissible without further proof as evidence before the Court of First
Instance or District Court of the failure to comply; and
(b) where the offender is brought or appears before the Court of First Instance
or District Court and that court is satisfied that he has failed to comply with
section 6(1), that court may either—
(i) without prejudice to the continuance of the order, impose on the of-
fender a fine not exceeding $1000; or
541
(ii) revoke the order and deal with the offender, for the offence in respect
of which the order was made, in any manner in which the offender
could have been dealt with for that offence by the court which made
the order if the order had not been made.
(5) A fine imposed under this section in respect of a failure to comply with section
6(1) shall be deemed for the purposes of any enactment to be a sum adjudged to be
paid by a conviction.
Commission of further offences
5–284 9.—(1) An offender who commits an offence whilst a community service order is in
force in respect of him (in this section referred to as “a subsequent offence”) may be
dealt with in respect of the subsequent offence and of any offence for which the com-
munity service order was made (in this section referred to as “an original offence”) in
accordance with this section.
(2) An offender who is convicted and sentenced by a court in respect of a subsequent of-
fence may in addition be sentenced by that court, if it considers it expedient to do so, for an
original offence in any manner in which the court that made the community service order
could have sentenced the offender if it had just convicted him of the original offence:
Provided that—
(a) a magistrate or a juvenile court shall not by virtue of this subsection sentence
an offender for the original offence if the community service order was made
by the Court of First Instance or the District Court; and
(b) the District Court shall not by virtue of this subsection sentence an offender
for the original offence if the community service order was made by the
Court of First Instance.
(3) Where a court sentences an offender under subsection (2) it may revoke, or vary
the terms of, any community service order which is in force in respect of him, or make
no order in respect of it.
(4) Where—
(a) a magistrate or a juvenile court convicts an offender of a subsequent offence
that was committed whilst a community service order made by the Court of
First Instance or the District Court was in force in respect of him; or
(b) the District Court convicts an offender of a subsequent offence that was com-
mitted whilst a community service order made by the Court of First Instance
was in force in respect of him, the court that convicts the offender may, if it
thinks fit, without proceeding to sentence order that the offender appear or
be brought before the court by which the community service order was made
to be dealt with under subsection (7), and for this purpose may commit him
to custody or release him on bail (with or without sureties); and a court that
so orders shall send to the Court of First Instance or the District Court, as
the case may be, a copy of the record of the conviction for the subsequent
offence.
(5) If it appears—
(a) to a judge of a court by which a community service order was made; or
(b) in the case of a community service order made by a magistrate or a juvenile
court, to a magistrate,
that an offender has been convicted by any court of a subsequent offence, and has been
dealt with for that offence but not sentenced under this section for an original offence,
the judge or magistrate may issue a summons requiring the offender to appear before
the court that made the community service order, at the time specified in the summons,
or may issue a warrant for his arrest requiring him to be brought before that court and
dealt with under subsection (7):
Provided that a magistrate shall not issue a warrant except on information in
writing and on oath.
(6) If a warrant issued under this section directs an offender to be brought before
the Court of First Instance or the District Court, and the offender cannot forthwith
be brought before that court, the warrant shall have effect as if it directed him to be
brought before a magistrate or a juvenile court and such magistrate or juvenile court
shall commit him to custody or release him on bail with or without sureties until he
can be brought before the Court of First Instance or District Court, as the case may be.
542
(7) Where it is proved to the satisfaction of the court before which an offender
appears or is brought under subsection (4), (5) or (6) that the offender has been
convicted of a subsequent offence, the court—
(a) may sentence him for an original offence in any manner in which the
court that made the community service order could have sentenced him if
it had just convicted him of the original offence, and may revoke, or vary
the terms of, any community service order that is in force in respect of
him, or may make no order in respect of it; and
(b) where the offender appears or is brought before the court under subsec-
tion (4), may also sentence him for the subsequent offence in any manner
in which the court that convicted him of the subsequent offence could
have sentenced him.

Variation and revocation of community service orders
10.—(1) Where a community service order is in force in respect of an offender, a 5–285
magistrate, on the application of the offender or his supervising probation officer—
(a) may, upon any of the grounds specified in subsection (2), if the community
service order was made by a magistrate—
(i) extend in relation to the order the period of 12 months specified in
section 7(b);
(ii) reduce the number of hours that the offender is required by the order
to spend performing work; or
(iii) revoke the order, and deal with the offender for the offence in respect
of which the order was made in any manner in which he could have
been dealt with for that offence by the court which made the order if
the order had not been made;
(b) may, if the community service order was made by the Court of First Instance
or District Court, commit the offender to custody or release him on bail until
he can be brought or appear before the Court of First Instance or District
Court as the case may be and if the magistrate does so, he shall send to that
Court such particulars of the case as in the opinion of the magistrate are
desirable.
(2) The grounds upon which a magistrate may vary or revoke a community service
order under this section are—
(a) that there has been a change of circumstances since the order was imposed
that would justify the variation or revocation of the order;
(b) that it is no longer necessary in the interests of the community or the of-
fender that the order should continue;
(c) that no or no more suitable service is available to be performed by the of-
fender for the purpose of the order;
(d) that because of incapacity or for humanitarian or other reasons considered
sufficient by the magistrate, it will be impossible for the offender to perform
the service before the order expires, or that it would be unreasonable to re-
quire him to do so.
(3) Where in pursuance of subsection (1)(b) the offender is brought or appears be-
fore the Court of First Instance or District Court, the Court may, upon the grounds spe-
cified in subsection (2), deal with the offender in any manner specified in subsection
(1)(a).
(4) Where a magistrate proposes to exercise his powers under this section other-
wise than on the application of the offender he shall summon him to appear before
the court and, if he does not appear in answer to the summons, may issue a warrant
for his arrest.
Court to give notice of revocation or variation of community service orders
11.—Where any court revokes, or extends, or otherwise varies, a community service 5–286
order it shall forthwith give to the offender, and send to the offender’s supervising pro-
bation officer and to the principal probation officer, a copy of its order revoking, ex-
tending or otherwise varying the community service order.
543
Breach of community service not for jury to decide
5–287 12.—In proceedings before the Court of First Instance under this Ordinance, any
question whether an offender has failed to comply with section 6(1), or has been con-
victed of an offence committed during the period that a community service order was in
force, shall be determined by the court and not by the verdict of a jury.
(2) Notes on community service orders

General
5–288 In HKSAR v Chow Chak Man [1999] 3 HKLRD 37, the Court of Appeal approved
the guidance given by the English Court of Appeal in R v Brown [1981] 3 Cr App R
(S) 294, as to the offender who was best suited for a community service order. Such a
person would:
(1) be either a first offender, or one with a “light” criminal record;
(2) come from a stable home background, perhaps with a family;
(3) have a good work record;
(4) be in employment or have a realistic prospect of such;
(5) have shown genuine remorse;
(6) present no more than a slight risk of re-offending.
In HKSAR v Wong Yiu Kuen [2002] 1 HKLRD 712, Mayo VP emphasised that “all
the factors must be satisfied”, and that they required “cumulative consideration”.
However, this dictum has been modified in later cases. Whilst it is not necessary that
all six factors be present before a community service order is made, in the vast majority
of cases where such an order is appropriate most, if not all, of those factors will be
present: HKSAR v Wan Ka kit [2006] 3 HKLRD 9. The six factors are not to be treated
as some sort of “strait-jacket”: HKSAR v So Oi Kwan (HCMA 482/2004, [2004] HKEC
1316). Even if a number of factors exist which in combination make an offender a
suitable candidate for a community service order, a judge should not “slavishly make
such an order”: Secretary for Justice v Lin Min Ying [2002] 3 HKC 415.
In Secretary for Justice v Wing Chi Fung [2017] 5 HKC 116, it was said that, in addition
to the six factors identified in R v Brown (above), the age of the offender was also a
relevant consideration.
It is unlikely that a community service order will ever be appropriate in the absence
of remorse: Secretary for Justice v Buk Chui Ying [2008] 5 HKLRD 185.
A community service order “is not a soft option or a let-off”: HKSAR v Choy Yau
Pan [2002] 3 HKLRD 156; HKSAR v Au Yong Shong [2007] 2 HKC 338. However, it is
quite obviously “a softer option”: HKSAR v Wan Ka-kit [2006] 3 HKLRD 9. It contains
elements of “both punishment and deterrence”: HKSAR v Shuichi (HCMA 174/1999,
(1999) HKLRD (Yrbk) 270).
Some offences may be simply too serious to justify a community sentence
order: HKSAR v Po Yan-chuen (CACC 232/2001, [2002] HKEC 348); Secretary for Justice
v Wong Tsz Kin (CACC 543/2004, [2005] HKEC 897). Other than in the most ex-
ceptional cases, a community service order will rarely be appropriate for burglary or
attempted burglary: HKSAR v Wan Ka Kit (2003) 6 HKCFAR 624 (CFA). Unlawful as-
sembly may be too serious an offence to justify a community service order: Secretary for
Justice v Wong Chi Fung [2018] 2 HKC 50, at [124] (CFA). A large scale theft case may
be unsuited to community service: Secretary for Justice v Chiu Chun Wai [2008] 1 HKC
306. However, in exceptional circumstances a community service order is not to be ex-
cluded from consideration for offences as serious as bribery and corruption: Secretary
for Justice v Li Cheuk Ming [1999] 1 HKLRD 63.
Community service orders requiring an offender to perform up to 240 hours un-
paid work are administered by the probation service. Such an order can only be im-
posed after the accused has been convicted: Att-Gen v Lee Tung Lun (HCMA 1502/
1989, [1990] HKLY 422). If a court adjourns sentence for a report considering suit-
ability for such an order, the court should generally act on a favourable report so that
the offender will not feel a sense of grievance: R v Gillam (1980) 2 Cr App R (S) 267;
HKSAR v Lee Chun-kit (HCMA 1007/2003, [2012] HKEC 1482).
544
Even if a community service order is appropriate for a defendant, a magistrate is
not bound to impose that order: HKSAR v Yau Yik Wai (HCMA 1037/2003, [2004] 2
HKLRD H11).
Willingness to comply with requirements of order

The offender should express his willingness to comply with the requirements of a 5–289
community service order. As to the meaning of “willingness”, see R v Marquis (1974)
59 Cr App R 228, CA, and R v Barnett (1986) 8 Cr App R (S) 200, CA. The court
should explain the nature of the proposed order and set out alternative sentencing
options so the accused can make a proper decision. The court must also be satisfied
that the offender is suitable for this type of work and that provision can be made to
supervise him.
Combined with custodial sentence

A community sentence is to be regarded as an alternative to a custodial sentence or 5–290
a lesser sentence. If it is an alternative to a custodial sentence, the number of hours an
offender is ordered to serve will be greater.
It is regarded as bad sentencing practice to combine a non-custodial sentence with
a suspended sentence of imprisonment. While it is possible to combine a community
service order with a suspended prison sentence it limits the way a court can deal with
the offender for breach of the community service order: R v Starie (1979) 1 Cr App R
(S) 172.
In R v Harkness (1993) 14 Cr App R (S) 366 the court held that in principle com-
munity service and probation could be combined although it was acknowledged that
there could be conflict between the requirements of the two supervising officers.
Where a community service order is made by one court for one offence, the making
of the order does not prevent another court, dealing with the offender for offences
committed before the order was made, from imposing a custodial sentence: see R v
Bennett (1980) 2 Cr App R (S) 96, CA.
Breach of community service order

An offender may expect to be sentenced to an immediate custodial sentence for 5–291
breaching a community service order. Time spent in custody prior to making the
community service order will be taken into account: R v Henderson [1997] 2 Cr App
R (S) 266. Credit will also be given for substantial part-performance of the original
order: R v Paisley (1979) 1 Cr App R (S) 196. If an offender cannot comply with an
order for medical reasons, a probation order or a discharge should be considered, ra-
ther than a suspended prison sentence: R v Davey (1994) 15 Cr App R (S) 852.
D. Drug Addiction Treatment Centre Orders

(1) Legislation
Drug Addiction Treatment Centre Ordinance (Cap 244), s 4
Detention order
4.—(1) Where a person is found guilty of a relevant offence and the court is satisfied 5–292
that in the circumstances of the case and having regard to his character and previous
conduct it is in his interest and the public interest that he should undergo a period
of cure and rehabilitation in an addiction treatment centre, the court may, in lieu of
imposing any other sentence, order that such person be detained in an addiction treat-
ment centre.
(2) A person in respect of whom a detention order is made shall be detained in an
addiction treatment centre for such period, not less than 2 months and not more than
12 months from the date of such order, as the Commissioner may determine, having
regard to the health and progress made by such person and the likelihood of his re-
maining free from addiction to any dangerous drug on his release, and shall then be
released.
545
(3) Before a detention order is made in respect of any person, the court shall consider
a report of the Commissioner on the suitability of such person for cure and rehabilita-
tion and on the availability of places at addiction treatment centres, and if the court has
not received such a report it shall, after such person has been found guilty, remand him
in the custody of the Commissioner for such period, not exceeding 3 weeks, as the court
thinks necessary to enable such a report to be made.
(4) When a court makes a detention order, no conviction shall be recorded against
the person in respect of whom the order is made unless, in the opinion of the court, the
circumstances of the offence so warrant and the court orders accordingly.
(5) The Commissioner shall, in his report under subsection (3), inform the court
whether or not a detention order has previously been made in respect of the person to
whom the report relates.
Drug Addiction Treatment Centres Ordinance (Cap 244), s 5
Supervision order
5–293 5.—(1) The Commissioner may order that a person released from an addiction treat-
ment centre shall, for a period of 12 months from the date of his release, be subject
to supervision by such organisation or person as he may specify and shall while under
such supervision comply with such requirements, including requirements as to medical
examination and as to residence, as he may specify.
(3) A person who fails to comply with any requirement specified in a supervision
order made against him commits an offence and is liable to a fine of $5000 and to im-
prisonment for 12 months.
Recall order
5–294 6.—(1) The Commissioner may, if he is satisfied that a person against whom a super-
vision order is in force has failed to comply with any requirement of the order, make
a recall order against such person requiring him to return to an addiction treatment
centre; and thereupon such person may be arrested and taken to an addiction treatment
centre and detained there.
(2) A person detained in an addiction treatment centre under subsection (1) shall be
detained until the expiry of 12 months from the date of the detention order or 4 months
from the date of his being arrested under the recall order, whichever is the later.
(3) The Commissioner may at any time release a person in respect of whom a recall
order is in force.
(4) Where a person is detained under a recall order the supervision order in force
at the time of that recall order shall cease to have effect during the period of his de-
tention and, if he is released from detention under that recall order within a period of
12 months from the date on which the supervision order came into force, shall again
have effect until the expiration of that period.
(5) Subsection (4) shall not apply where the supervision order was made before the
commencement of the Drug Addiction Treatment Centres (Amendment) Ordinance
1986 (24 of 1986).
Drug Addiction Treatment Centres Ordinance (Cap 244), s 6A
Effect of imprisonment or further detention order
5–295 6A.—(1) If a person in respect of whom a detention order, a supervision order or a
recall order is in force is sentenced to imprisonment—
(a) for a term of 9 months or less (or in the case of a detention order, super-
vision order or recall order made before the commencement of the Drug
Addiction Treatment Centres (Amendment) Ordinance 1986 (24 of 1986),
2 years or less), the detention order, supervision order or recall order shall
be suspended until the expiration of his term of imprisonment;
(b) for a term of more than 9 months (or in the case of a detention order, super-
vision order or recall order made before the commencement of the Drug
Addiction Treatment Centres (Amendment) Ordinance 1986 (24 of 1986),
2 years) or a new detention order is made in respect of him, the first-men-
tioned detention order, or the supervision order or recall order, as the case
may be, shall cease to have effect.
546
(2) If a person in respect of whom—
(a) a detention order is in force is further sentenced to detention in a training
centre, his detention in such a training centre shall take effect on the expir-
ation of the detention order;
(b) a supervision order is in force is further sentenced to detention in a training
centre, the supervision order shall lapse;
(c) a recall order is in force is further sentenced to detention in a training
centre—
(i) the recall order shall lapse; or
(ii) his detention in such a training centre shall take effect on the expir-
ation of the recall order,
as may be decided by the Commissioner.
Drug Addiction Treatment Centres Ordinance (Cap 244)
Section 6B Lapse of supervision order
(1) A supervision order shall lapse if the person against whom it was made is under 5–296
any other Ordinance placed under the supervision of a probation officer or any other
person other than the Commissioner.
(2) This section shall not apply in the case of a supervision order made before the
commencement of the Drug Addiction Treatment Centres (Amendment) Ordinance
1986 (24 of 1986).
Arrest etc of persons unlawfully at large
7.—(1) If a police officer reasonably suspects that a person in respect of whom a de- 5–297
tention order or a recall order is in force is unlawfully at large, he may arrest such person
and take him to the place in which he is required to be detained.
(1A) If an officer of the Correctional Services Department specified in a supervision
order made in respect of a person against whom a recall order is in force, or such other
officer of that Department as the Commissioner may substitute for the officer so spe-
cified by a variation of that supervision order, reasonably suspects that that person is
unlawfully at large, he may arrest such person and take him to the place in which he is
required to be detained.
(2) Any period during which a person in respect of whom a detention order or a re-
call order is in force is unlawfully at large shall be disregarded in calculating the period
for which he may be detained under such detention order or recall order, unless the
Chief Executive otherwise directs.
Transfer to prison
8.—(1) If the Chief Executive is satisfied, on application by the Commissioner, that 5–298
a person detained in an addiction treatment centre is exercising a bad influence on
other persons detained in the addiction treatment centre, the Chief Executive may
order such person to be transferred to and detained in a prison for a period not
exceeding—
(a) the balance of the period during which such person might have been de-
tained in an addiction treatment centre; or
(b) the term of imprisonment to which such person was liable for the offence of
which he was found guilty,
whichever is the less.
(2) A person in respect of whom an order is made under subsection (1) shall, for the
purposes of the Prisons Ordinance (Cap 234), be deemed to have been sentenced for
the offence of which he was found guilty to a term of imprisonment for the period for
which he is ordered to be transferred to and detained in a prison.
(3) Where an order is made under subsection (1) the Commissioner shall cause a
certified copy thereof to be transmitted to the court that made the detention order and,
notwithstanding that it made no order under section 4(4), the court may order that a
conviction shall be recorded in respect of the offence in relation to which the detention
order was made.
(4) Where the court makes an order under subsection (3) that a conviction shall be
recorded it shall cause the Commissioner of Police to be notified accordingly.
547
Drug Addiction Treatment Centres Ordinance (Cap 244), s 8A
Transfer of persons serving a prison sentence to an addiction treatment centre
5–299 8A.—(1) If the Chief Executive is satisfied, on application by the Commissioner, that
a person serving a sentence of imprisonment is addicted to any dangerous drug and
having regard to his health, character and previous conduct, it is in his interest and the
public interest that he should undergo a period of cure and rehabilitation in an addic-
tion treatment centre, the Chief Executive may order such person to be transferred to
and detained in an addiction treatment centre.
(2) An order under subsection (1) shall not be made in respect of any such person
if the balance of the term of imprisonment to which he is liable to serve is more than
12 months, taking into account the amount of remission of sentence which may be
earned by him. (3) A person in respect of whom the Chief Executive makes an order
under subsection (1) shall be deemed to have been ordered to be detained in an addic-
tion treatment centre in accordance with section 4(1) from the date of the making of
the order.
Drug Addiction Treatment Centres Regulations (Cap 244A), reg 6
Establishment of boards to make recommendations to the Commissioner
5–300 (1) There shall be established in respect of each addiction treatment centre a Board
of Review consisting of the following persons—
(a) the Deputy Commissioner or a Senior Superintendent who shall be the
Chairman;
(b) the Superintendent;
(c) not less than 3 other officers of the Correctional Services Department or
public officers, as the Commissioner may from time to time appoint.
(2) Meetings of a Board shall be held at such times and places as the Chairman may
appoint but at least once in every month.
(3) At any meeting of a Board 3 members shall form a quorum.
(4) Subject to the provisions of these regulations, a Board may regulate its procedure
in such manner as it thinks fit.
Functions of Board
5–301 (1) The functions of a Board shall be—
(a) to review the progress of each inmate since his admission and to make re-
commendations to the Commissioner relating to his release;
(b) to make recommendations to the Commissioner concerning the desirability
of transfer to prison of any inmate who is alleged to exercise a bad influence
on inmates in the addiction treatment centre.
(2) A Board, for the purpose of carrying out its functions, shall interview an inmate—
(a) during the second month after the date of his admission;
(b) at least once in every 2 months during the 4 months following the first
interview; and
(c) thereafter at least once in each month.

Inmates exercising bad influence
5–302 (1) If, in the opinion of the Superintendent, an inmate is exercising a bad influence
on other inmates in the addiction treatment centre, the Superintendent shall cause the
inmate to be brought before the Board.
(2) The Board shall examine the record of the inmate and, after giving him an op-
portunity of being heard and of calling evidence, may recommend to the Commissioner
that an application be made under section 8(1) of the Ordinance for the transfer of the
inmate to prison.
Supervision order
5–303 A supervision order shall be read and explained to an inmate by, or in the presence
of, the Superintendent prior to the release of the inmate from an addiction treatment
centre.
548
Educational classes
The Superintendent may require an inmate to attend any course, class or lecture 5–304
which the Superintendent considers would be beneficial to the inmate.

Leave of absence
(1) The Commissioner may grant to an inmate leave of absence for a period not ex- 5–305
ceeding 72 hours at any one time.
(2) An inmate granted leave of absence shall be given a pass in writing under the
hand of the Commissioner setting out the period during which the inmate is permitted
to be absent from the addiction treatment centre and the address at which the inmate is
required to reside during his leave.
(3) An inmate who, without lawful excuse—
(a) fails to return to the addiction treatment centre at or before the expiration
of the period for which he has been granted leave; or
(b) fails to reside at the address specified in the pass issued under paragraph (2),
An inmate who commits any of the offences enumerated in rule 61 of the Prison Rules 5–306
(Cap 234 sub leg) as applied by section 9 of the Ordinance shall be guilty of a discip-
linary offence.
Punishment which may be imposed by the Superintendent
(1) An inmate who commits a disciplinary offence under regulation 13 or 14 5–307
shall be liable, by order of the Superintendent, to any one or more of the following
punishments—
(a) (Repealed LN 166 of 1983)
(b) separate confinement for a period not exceeding 28 days;
(c) forfeiture of privileges for a period not exceeding 3 months;
(d) deprivation of earnings or part thereof;
(e) deduction from earnings of the cost of any Government property lost, or wil-
fully damaged or destroyed by the inmate.
(2) An inmate may appeal to the Commissioner against any order made by the Super-
intendent under paragraph (1), within 48 hours after the making of the order, by giving
notice in writing to the Superintendent, and the Superintendent shall forthwith notify
the Commissioner accordingly and shall stay execution of the order pending the deter-
mination of the appeal.
(3) The Commissioner may confirm, vary or reverse the order against which the ap-
peal is made or may substitute therefore any other order which the Superintendent was
(2) Notes on drug treatment orders

General
Offenders found guilty of an offence punishable to imprisonment, other than for 5–308
non-payment of a fine, and who are addicted to dangerous drugs may be sentenced
to a drug addiction treatment centre where the emphasis is on cure and rehabilita-
tion: rehabilitation of this type reduces the drug population and that, in turn, “im-
pinges on the menace of the drug trade”; R v So Ma-kwai [1993] 1 HKCLR 92, 93.
However, if the offence is serious and the record of the accused is bad, a drug addic-
tion treatment centre (DATC) order will normally be inappropriate: Secretary for Justice
v Chan Suet Ping [2018] 1 HKLRD 305.
Before an offender is sent to a DATC, the court must call for reports on suitability.
Reports will be compiled on suitability for DATC, detention centre and training cen-
tre, unless the court orders otherwise. While there are similarities between the three
549
centres, a DATC focuses on treatment and cure rather than punishment and training.
If a DATC report is favourable, the court should be slow to reject the recommenda-
tion: R v Nguyen Van Duc (HCMA 1443 & 1599/1990, [1991] HKLY 236).
The treatment of a drug addict is both physical and psychological: Att-Gen v Chan
Tak King [1989] 2 HKLR 428. The fact that a defendant has been physically detoxi-
fied while on remand does not, of itself, render him unsuitable for the DATC, as
the healing of his psychological dependence on drugs is another matter: HKSAR v
Bautista Dominic Catedrilla (HCMA 123/2016, [2016] HKEC 1893).
A DATC order should not be coupled with any other sentence: Attorney General v
Wong Loy Hing [1977] HKLR 96; HKSAR v Lam Mee Fat [2003] 3 HKLRD 641; HKSAR
v Lam Man Wo [2004] 1 HKLRD 278; HKSAR v Man Wai Shing [2004] 2 HKC 465.
Even though the court is concerned with the accused’s drug addiction, it is wrong
in principle to order a rehabilitative sentence to take place after a term of imprison-
ment: HKSAR v Ledesma Jose Rizaldo R [2011] 2 HKLRD 674. An offender is required
to stay at the DATC for between 2 and 12 months, the precise term depending on the
progress that is made. On release, the offender will be subject to compulsory super-
vision for 12 months: HKSAR v Savage (No 4) [1997] 2 HKC 775. If the terms of the
order are violated, he may be recalled to the DATC and detained there until the ex-
piry of 12 months from the date of the detention order or from the date of his being
arrested under the recall order, whichever is the later.
The court has a discretion not to record a conviction when an accused is sent to a
DATC, but the finding of guilt may be taken into account if the accused is later con-
victed of another offence by another court: R v Chan Ka Choi [1988] 1 HKLR 530.
E. Probation Orders
(1) Legislation
Probation of Offenders Ordinance (Cap 298), s 3
Probation
5–309 3.—(1) Where a court by or before which a person is tried for an offence (not
being an offence the sentence for which is fixed by law) is of opinion that having
regard to the circumstances, including the nature of the offence and the character
of the offender, it is expedient to do so, the court may, after conviction, make a pro-
bation order, that is to say, an order requiring him to be under the supervision of a
probation officer for a period to be specified in the order of not less than 1 year nor
more than 3 years.
(2) A probation order may in addition require the offender to comply during the
whole or any part of the probation period with such requirements as the court, having
regard to the circumstances of the case, considers necessary for securing the good con-
duct of the offender or for preventing a repetition by him of the same offence or the
commission of other offences. Provided that (without prejudice to the power of the
court to make an order under section 7(2)) the payment of compensation under that
section shall not be included among the requirements of a probation order.
(3) Without prejudice to the generality of subsection (2), a probation order may in-
clude requirements relating to the residence of the offender:
Provided that—
(a) before making an order containing any such requirements, the court shall
consider the home surroundings of the offender; and
(b) where the order requires the offender to reside in an approved institution,
the name of the institution and the period for which he is so required to
reside shall be specified in the order, and that period shall not extend be-
yond 12 months from the date of the order.
(4) Before making a probation order, the court shall explain, or cause to be explained,
to the offender in a language understood by him the effect of the order (including any
additional requirements proposed to be inserted therein under subsection (2) or (3))
and that if he fails to comply therewith or commits another offence he will be liable to
be sentenced for the original offence; and if the offender is not less than 14 years of age
the court shall not make the order unless he expresses his willingness to comply with the
requirements thereof.
550
(5) A probationer shall be subject to the supervision of the probation officer ap-
pointed or assigned to the area in which such probationer may from time to time reside,
or to such other probation officer as the principal probation officer may nominate.
(7) The court by which a probation order is made, or any court by which an order
is made under section 4(2) amending any such probation order, shall forthwith give
copies of such order, or such amending order as the case may be, to the probation of-
ficer responsible for the supervision of the probationer and he shall give a copy thereof
to the probationer and to the person in charge of any institution in which the proba-
tioner is or was by such order or such amending order required to reside.
Probation of Offenders Ordinance (Cap 298), s 3A
Restriction on punishment of probationer
3A.—An offender in whose case a probation order is made shall not be sentenced 5–310
further.
Discharge, amendment and review of probation orders
4.—(1) Any court may upon application made by the probation officer responsible 5–311
for the supervision of an offender or by a probationer discharge a probation order:
Provided that if the probation order was made by the Court of First Instance or by
the District Court such order shall not be discharged except by the court which made
the order.
(2) Any court may, upon application made by the probation officer responsible for
the supervision of an offender or by a probationer, by order amend a probation order
by cancelling any of the requirements thereof or by inserting therein (either in add-
ition to or in substitution for any such requirement) any requirement which could be
included in the order if it were then being made by that court in accordance with the
provisions of section 3(2):
Provided that—
(a) a court shall not amend a probation order by reducing the probation
period, or by extending that period beyond the end of 3 years from the
date of the original probation order;
(b) a court shall not so amend a probation order that the probationer is
thereby required to reside in an approved institution for any period ex-
ceeding 12 months in all; and
(c) where the probation order was made by the Court of First Instance or the
District Court, the order shall not be amended except by the court which
made the order.
(3) Where a court proposes to amend a probation order under this section, other-
wise than on the application of the probationer, it shall summon him to appear before
the court; and if the probationer is not less than 14 years of age, the court shall not
amend a probation order unless the probationer expresses his willingness to comply
with the requirements of such pro-bation order as amended: Provided that this sub-
section shall not apply to an order cancelling a requirement of a probation order or
reducing the period of any requirement thereof.
(4)–(5) (Repealed 76 of 1979 section 2)
(6) Where, under any of the provisions of this Ordinance, a probation order is
discharged or amended or the probationer is sentenced for the offence for which
he was placed on probation, the court shall send for the record in which the ori-
ginal order of probation appears and shall endorse thereon any order it may make
or any sentence it may pass, as the case may be, and where the probationer is sen-
tenced for the offence for which he was placed on probation, the probation order
shall cease to have effect.
Breach of requirements of probation order
5.—(1) If at any time during the probation period it appears on information to a 5–312
magistrate that the probationer has failed to comply with any of the requirements of the
551
order, the magistrate may issue a summons requiring the probationer to appear at the
place and time specified therein, or may, if the information is in writing and on oath,
issue a warrant for his arrest.
(2) If it is proved to the satisfaction of the magistrate’s court before which a proba-
tioner appears or is brought under this section that the probationer has failed to comply
with any of the requirements of the probation order, the court may, without prejudice
to the continuance of the probation order, caution him or impose on him a fine not
exceeding $500, or may—
(a) if the probation order was made by a magistrate’s court, deal with the proba-
tioner for the offence in respect of which the probation order was made, in
any manner in which the court could deal with him if he had just been tried
for or convicted of that offence by or before that court or refer the case to
the court by which the probation order was made;
(b) if the probation order was made by the Court of First Instance or District
Court, commit him to custody or release him on bail (with or without sure-
ties) until he can be brought or appear before the Court of First Instance or
the District Court, as the case may be.
(3) Where the magistrate’s court deals with the case as provided in subsection (2)(b),
then—
(a) the court shall send to the Court of First Instance or the District Court a cer-
tificate signed by the magistrate, certifying that the probationer has failed
to comply with such of the requirements of the probation order as may be
specified in the certificate, together with such other particulars of the case as
may be desirable; and a certificate purporting to be so signed shall be admis-
sible as evidence of the failure before the Court of First Instance or District
Court; and
(b) where the probationer is brought or appears before the Court of First
Instance or District Court, and it is proved to the satisfaction of such court
that he has failed to comply with any of the requirements of the probation
order, the court may deal with him, for the offence in respect of which the
probation order was made, in any manner in which the court could deal with
him if he had just been tried for or convicted of that offence by or before
that court.
(4) A fine imposed under this section in respect of a failure to comply with the re-
quirements of a probation order shall be deemed for the purposes of any enactment to
be a sum adjudged to be paid by a conviction (which expression includes any costs or
compensation adjudged to be paid by the conviction of which the amount is ascertained
by the conviction).
Commission of further offence
5–313 6.—(1) If it appears to a judge or magistrate on whom jurisdiction is hereinafter
conferred that a person in whose case a probation order or an order for conditional
discharge has been made has been convicted by any court in Hong Kong of an offence
committed during the probation period or during the period of conditional discharge,
and has been dealt with in respect of that offence, the judge or magistrate may issue a
summons requiring that person to appear at the place and time specified therein, or
may issue a warrant for his arrest:
Provided that a magistrate shall not issue such a warrant except on information in
writing and on oath.
(2) The following persons shall have jurisdiction for the purposes of subsection (1),
that is to say—
(a) if the probation order or the order for conditional discharge was made by
the Court of First Instance, a judge of the Court of First Instance;
(b) if the order was made by the District Court, a district judge;
(c) if the order was made by a magistrate’s court, or juvenile court, a
magistrate.
(3) A summons or warrant issued under this section shall direct the person so con-
victed to appear or be brought before the court by which the summons or warrant was
issued or before the court by which the probation order or the order for conditional
discharge was made:
552
Provided that if that court is the Court of First Instance or the District Court and he
cannot forthwith be brought before that court a summons or warrant shall have effect
as if it directed him to be brought before a magistrate’s court or juvenile court and
such magistrate’s court or juvenile court shall commit him to custody or release him
on bail with or without sureties until he can be brought or appear before the Court
of First Instance or District Court, as the case may be.
(4) If a person in whose case a probation order or an order for conditional discharge
has been made by the Court of First Instance or the District Court is convicted by a
magistrate’s court in respect of an offence committed during the probation period or
during the period of conditional discharge, the magistrate’s court may order that he
be brought or appear before the court by which the order was made if the magistrate
considers it expedient to do so, and for this purpose may commit him to custody or
release him on bail (with or without sureties); and if the magistrate’s court makes
such an order, it shall send to the Court of First Instance or the District Court, as the
case may be, a copy of the minute or memorandum of the conviction entered in the
register, signed by the magistrate.
(5) Where it is proved to the satisfaction of the court before which a proba-
tioner or a person subject to an order for conditional discharge appears or is
brought pursuant to this section that the person in whose case such order was
made has been convicted and, except in the case of an order under subsection
(4), dealt with in respect of an offence committed during the probation period, or
during the period of conditional discharge, as the case may be, the court may deal
with him, for the offence for which the order was made, in any manner in which
the court could deal with him if he had just been tried for or convicted of that of-
fence by or before that court.
(5A) Where a person has been ordered to be brought or appear before the Court of
First Instance or District Court under subsection (4), that court, after dealing with him
under subsection (5) in respect of the original offence, may deal with such person in
respect of the offence referred to in subsection (4) in any manner in which he could
be dealt with by a magistrate’s court for that offence, or order that he be brought or
appear before the magistrate’s court to be dealt with in respect of that offence and for
such purpose may commit him to custody or release him on bail (with or without sure-
ties); and if the Court of First Instance or District Court makes such an order it shall
send to the magistrate’s court a copy of every order or sentence made or imposed,
signed by the judge.
(6) If a person in whose case a probation order or an order for conditional dis-
charge has been made by a magistrate’s court is convicted before the Court of First
Instance or District Court or another magistrate’s court of an offence committed dur-
ing the probation period or during the period of conditional discharge, the Court of
First Instance or the District Court or such other magistrate’s court may deal with him,
for the offence for which the order was made, in any manner in which the magistrate’s
court by which the order was made could deal with him if he had just been tried for or
convicted of that offence by or before that court.
Supplementary provision as to probation and discharge
7.—(1) Without prejudice to the provisions of section 15(j) of the Juvenile 5–314
Offenders Ordinance (Cap 226) (which enables a court to order the parent or
guardian of a child or young person charged with an offence to give security for
his good behaviour), any court may, on making a probation order or an order for
conditional discharge, if it thinks it expedient for the purpose of the reformation of
the offender, allow any person who consents to do so to give security for the good
behaviour of the offender; and section 64 of the Magistrates Ordinance (Cap 227)
shall apply to any such security as if it were a security given under the provisions of
that Ordinance by a surety.
(2) A court, on making a probation order or an order for conditional discharge, may,
without prejudice to its power to award costs against him, order the offender to pay to
any aggrieved person such compensation for—
553
as it thinks reasonable; but in the case of an order made by a magistrate’s court, the com-
pensation shall not exceed $5000.
(3) An order for the payment of compensation as aforesaid may be enforced in like
manner as an order for the payment of costs by the offender; and where a court, in add-
ition to making such an order for the payment of compensation to any person, orders
the offender to pay to that person any costs, the orders for the payment of compensation
and for the payment of costs may be enforced as if they constituted a single order for
the payment of costs.
(4) In proceedings before the Court of First Instance under the foregoing provisions
of this Ordinance, any question whether a probationer has failed to comply with the
requirements of the probation order or has been convicted of an offence committed
during the probation period, and any question whether any person in whose case an
order for conditional discharge has been made has been convicted of an offence com-
mitted during the period of conditional discharge, shall be determined by the court and
not by the verdict of a jury.
(5) When a court makes any order under the provisions of this section, then if the
offender—
(a) is under 14 years of age, such order shall be enforced against the parent or
guardian of the offender;
(b) is under 16 years of age, such order may be enforced either against the par-
ent or guardian of the offender or against the offender as to the court seems
just in any particular case.
Probation of Offenders Ordinance (Cap 298), s 11A

Charges for food and accommodation
5–315 11A.—If, with the permission of the superintendent of an approved institution, a pro-
bationer who resides in the institution is employed outside the institution under a con-
tract of service or apprenticeship, and is paid wages, the superintendent may require
the probationer to pay such charge in respect of his food and accommodation at the in-
stitution as the principal probation officer, with the approval of the Financial Secretary,
may determine.
Probation of Offenders Rules (Cap 298A), rule 16
Preliminary inquiries
5–316 A probation officer shall make such preliminary inquiries, including inquiries into
the home surroundings, as a court may direct in respect of any offender in whose case
the question of the making of a probation order may arise.
Explaining requirements of probation orders
5–317 A probation officer shall, when required by a probation order, undertake the super-
vision of a probationer and shall ascertain that the probationer understands the re-
quirements and conditions of the probation order and shall by warning and persuasion
endeavour to ensure compliance with requirements of the probation order. If the pro-
bationer fails to obey any of the conditions, the probation officer shall report as here-
inafter directed.
Maintaining touch with probationers
5–318 (1) The probation officer shall, subject to any provisions of the probation order,
keep in close touch with the probationer, meet him frequently, and unless there is good
reason for not doing so shall visit his home from time to time and require the proba-
tioner to report to him at stated intervals.
(2) The intervals at which, in accordance with this rule, the probation officer meets
the probationer, visits his home and requires the probationer to report, shall be deter-
mined amongst other circumstances by the probationer’s behaviour and progress and
regard shall be had to the importance of frequent meetings during the early stages of
the probation period.
554
Advising, assisting and befriending probationers
A probation officer shall advise, assist and befriend the probationer, and when ne- 5–319
cessary endeavour to find him employment. For these purposes he shall secure as far as
possible the co-operation and assistance of social and religious workers.

Probation officers to submit reports
(1) When any person has been placed on probation, the probation officer under 5–320
whose supervision the probationer is for the time being, shall, if so requested by the
supervising court, from time to time report to such court upon the probationer’s mode
of life and generally upon his progress.
(2) A probation officer shall from time to time report to the Principal Probation
Officer upon the conduct and mode of life and generally upon the progress of every
probationer who has been placed under his supervision.
(3) Where a probationer fails to comply with any of the requirements of a probation
order, the probation officer shall report the fact to the supervising court and to the
Principal Probation Officer.
Reports – how made
Reports made under rule 20 shall be made at such intervals and in such manner as 5–321
may be directed by the supervising court or by the Principal Probation Officer, as the
case may be, and they shall not be made in open court or published.
Reports from institutions and other officers
(1) A report made in pursuance of section 4(4) of the Ordinance, shall include— 5–322
(a) a report by the superintendent of the approved institution in which the pro-
bationer has been required to reside, and
(b) a report by the appropriate probation officer as to the suitability of such
probationer’s home or other place where, if the requirement of residence in
such institution is cancelled, he proposes to reside.
(2) It shall be the duty of the probation officer appointed or assigned to any area to
furnish to another probation officer, on request, such a report as is mentioned in para-
graph (1)(b).
Records
Every probation officer shall keep in the form and manner prescribed by these rules 5–323
a proper record concerning each probationer placed under his supervision and shall
ensure that access to such record is not available to unauthorised persons.
Leave of absence
(1) The superintendent of an approved institution, or any member of his staff duly 5–324
authorised by him, may at any time grant to a probationer, who is required to reside in
the approved institution, leave of absence from the approved institution—
(a) for any period not exceeding 12 hours where such absence is in accordance
with the purpose of the probation order and the conditions thereof; and
(b) with the prior permission of the probation officer who has been entrusted
with the supervision of the probationer, for any period for the purpose of
employment or training, including any course of instruction or participation
in any other activities outside the boundaries of the institution, whether or
not such activities are conducted by a member of the staff of the institution.
(2) A probationer who is granted leave of absence shall proceed directly from the in-
stitution to such place as he may be directed by the superintendent or by a duty author-
ised member of his staff, and, if so directed, shall reside at such place.
(3) A probationer, who, without reasonable cause, fails to return to the institution
before the expiry of his period of leave of absence or who leaves a place of employment
555
or training or the place to which he has been directed by the superintendent or by a
member of his staff, shall be deemed to be absent without leave and to have failed to
comply with the conditions of residence.
(2) Notes on probation orders

General
5–325 The “supervising court”, in relation to a probationer or a probation order, means
the Magistrates’ Court having jurisdiction in the district or area in which the proba-
tioner is, for the time being, resident: section 2 of the Probation of Offenders Rules.
A probation order may only be imposed after the court has entered a convic-
tion: Att-Gen v Lee Tung Lun [1990] HKLY 422. The suitability of the accused for
such an order must be assessed before it is imposed. Unless there is some realistic
prospect of a probation report being acted upon if favourable, it ought not to be
sent for. As Woo JA explained in HKSAR v Hui Ka Sang [2000] 2 HKLRD 718:“In
such a serious offence as rape, it is normally unnecessary to have a probation re-
port on the accused because his background will rarely matter to the sentence to
be passed, and to do so would be a waste of public resources. We just mention this
as a reminder to the lower courts”.
A court is not bound to place the accused upon probation if the report is favour-
able; R v Lam Kan [1983] 2 HKC 401. Problems may arise, however, if such report is
not acted upon in the absence of good reason.
The recommendation in the probation officer’s report is “persuasive” and does
not bind the court, and “there may be occasions where the recommendation is not
followed given all the facts and circumstances of the case and the relevant sentencing
principles”: HKSAR v Wong Mei Yii [2015] 2 HKLRD 1112, at [29].
In the event of an offender not being recommended for probation because he
might have to leave Hong Kong, there is nothing to preclude the court from imposing
a sentence of imprisonment, whether suspended or otherwise: HKSAR v Lacroix [2010]
2 HKC 327.
That an offence is serious does not of itself preclude the probationary option. It
does, however, make it less likely. It is not realistic to consider probation in a case of
manslaughter and wounding: HKSAR v Cheung Kwok Kay (unrep., CACC 377/2000).
Probation, even for a serious offence of violence, may, however, be considered if the
accused suffers from a psychiatric condition which requires the court to switch its
emphasis away from retribution and deterrence: HKSAR v Chiu Yu To [2001] HKEC
803. In such a situation the court must balance “his duty to the public and at the same
time doing what was proper in the circumstances in order to assist the defendant”:
R v McDonald [1983] 5 Cr App R 419. Rehabilitation, in such circumstances, is the
overarching consideration. In Att-Gen v Ngan Chak Hung (unrep., CAAR 1/1994),
Silke ACJ explained:“We accept that it is unusable where the charge is one under
section 17 of the Offences Against the Person Ordinance (Cap 212) to make a proba-
tion order but, in the light of all the circumstances of this case and in particular the
nature of the offender himself, we think that the interests of justice, the interests of
offender and of society in general will be served if we were to make such an order”.
If an accused who is guilty of a serious offence is placed upon probation due to

mental disorder, it will be appropriate for the court to include a condition that he
receive psychiatric treatment, either in a halfway house (as in HKSAR v Chiu Yu To
[2001] 3 HKC 186) or as an out-patient (as in R v Jones [1992] 13 Cr App R(S) 275).
A probation order can only be passed if the accused agrees to it and all the condi-
tions. Consent must be genuine: Lai Yuen Cheung v R [1981] HKC 546. He must, for
example, understand he is expected to keep in touch with the probation officer both
at his home and to visit the probation officer as required and he must live and work
as directed by the probation officer (see HKSAR v Cheng Wai Na (HCMA 779/1997)).
The purpose of probationary conditions is “to give additional teeth to the proba-
tion order and ensure there is not repetition of this offence by the defendant through
556
a program of education, care and supervision to assist in her rehabilitation and future
development”: HKSAR v Wong Mei Yi [2015] 2 HKLRD 1112, at [32].
If a probationer offends again, another probation order may be imposed by a court.
In that case, the first order is subsumed by the second one.
A person may be ordered to live in an approved institution run by the Director of
Social Welfare. Such institutions help young offenders change their conduct and atti-
tude so when discharged they are equipped to lead law-abiding lives.
Probation cannot be combined with even a short period of imprisonment: R v lsh-
erwood [1974] 59 Cr App R 162. A probation order should not be passed together
with a community service order even for separate offences sentenced at the same
time: Gilding v DPP (The Times, 20 May 1998).
Under section 109B(2) of the Criminal Procedure Ordinance (Cap.221), if a sus-
pended sentence of imprisonment is imposed, the court shall not make a probation
order in respect of another offence (see §5–115, above). A fine cannot be imposed as
well as a probation order: R v Parry [1951] 2 KB 590; but if the accused is convicted
of two offences, he may be fined for one and put on probation for the other: R v Jones
[1968] Crim L R 120.
Breach of probation order

If an accused breaches the terms of the probation order he may be brought 5–326
back to court to be sentenced for the original offence. Where a court subsequently
considers sentence afresh and imposes a custodial sentence in place of proba-
tion, the court should make a formal order discharging the original probation
order, so as to avoid misunderstanding: HKSAR v Wong Chi Hong [2013] 1
HKLRD 251.
The probation officer can report to the court the failure of the probationer to
comply with the terms and the court should then issue a summons requiring the of-
fender to appear. If the alleged failure to comply is proved, the magistrate may take
further action. The court will deal with him as though he had just been convicted of
the offence.
Further offences committed while on probation

If further offences are committed during the probationary period, the court sen- 5–327
tencing for the new offences has no power to revoke the probation order and impose
a sentence for that offence if the order has expired in the meantime: R v Cousin 15
Cr App R (S) 516. If the probation order has only just been passed, the court can pass
sentence for the original offence or may leave the order. It is however not possible to
impose a custodial sentence for the new offence and extend the probation order: R v
Mullervy (1986) 8 Cr App R (S) 41.
F. Supervision Orders
(1) Legislation
Criminal Procedure Ordinance (Cap 221), s 109AA
Supervision orders
109AA.—(1) In the case of a person who, before attaining the age of 25 years, is re- 5–328
leased from imprisonment or completes after such release a period of supervision or-
dered under section 7(2) of the Prisoners (Release under Supervision) Ordinance (Cap
325), the Commissioner of Correctional Services shall, subject to subsections (1A) and
(2) of this section, make a supervision order under this section if the sentence of impris-
onment which that person has served, or in respect of which the order under section
7(2) of that Ordinance was made, was for a term—
(a) of 3 months or more;
(b) other than in default of payment of a sum of money; and
(c) which that person began to serve—
(i) before he attained the age of 21 years; and
(ii) after 1 May 1980.
557
(1A) No supervision order shall be made under subsection (1) on the release of a
person from imprisonment where he is so released subject to supervision under section
7(1) of the Prisoners (Release under Supervision) Ordinance (Cap 325). (Added 59 of
1987 section 21)
(2) No supervision order shall be made under subsection (1) on the release of a
person in respect of whom—
(aa) a removal order made under section 19 of the Immigration Ordinance (Cap
115), or deportation order made under section 20 of that Ordinance, is
in force;
(a) there is revived upon his release a detention order, supervision order, or
recall order, that was suspended under section 6A of the Drug Addiction
Treatment Centres Ordinance (Cap 244); or
(b) there is revived upon his release a sentence of detention in a training centre,
a supervision notice, or an order of recall, that was suspended under section
5A of the Training Centres Ordinance (Cap 280).
(3) A supervision order under subsection (1) shall contain conditions that the person
against whom it is made shall—
(a) subject to subsections (4) and (5), be subject to supervision by such organ-
isation or person as may be specified therein for a period commencing on
the date of his release from prison and expiring not more than 12 months
thereafter; and
(b) while under supervision, comply with such requirements, including require-
ments as to residence, as may be specified therein.
(4) The Commissioner of Correctional Services may at any time cancel or vary the
terms of a supervision order under subsection (1).
(5) A supervision order under subsection (1) shall—
(a) be suspended in its operation for any period during which the person against
whom it was made—
(i) is detained pursuant to a recall order under section 109AB; or
(ii) is serving a term of imprisonment of less than 3 months,
but shall not by reason of any such suspension expire more than 12 months after the date
on which it was made;
(b) cease to have effect where the person against whom it was made—
(i) is ordered to serve a term of imprisonment of 3 months or more;
(ii) is ordered to be detained in an addiction treatment centre under the
Drug Addiction Treatment Centres Ordinance (Cap 244);
(iii) is ordered to be detained in a training centre under the Training
Centres Ordinance (Cap 280);
(iv) is made the subject of a probation order under section 3 of the
Probation of Offenders Ordinance (Cap 298); or
(v) attains the age of 26.
(6) A person who fails to comply with a supervision order under subsection (1) shall
be guilty of an offence and liable on conviction to a fine of $5000 and to imprisonment
for 12 months.
Criminal Procedure Ordinance (Cap 221), s 109AB
Recall orders
5–329 109AB.—(1) Where the Commissioner of Correctional Services is satisfied that a
person against whom a supervision order under subsection (1) of section 109AA is in
force has failed to comply with the order, he may, if such person earned remission under
rule 69 of the Prison Rules (Cap 234 sub leg) in respect of the period of imprisonment
which ended on his release from prison referred to in that subsection, make a recall
order against him requiring him to return to prison.
(2) Subject to subsections (3) and (4), a person against whom a recall order is made
under subsection (1) may be detained in prison for a period equivalent to the amount
of the remission that was earned by him.
(3) The Commissioner of Correctional Services may at any time release a person who
is detained pursuant to a recall order under subsection (1).
(4) A recall order under subsection (1) shall cease to have effect where the person
against whom it was made—
(a) is ordered to serve a term of imprisonment;
558
(b) is ordered to be detained in an addiction treatment centre under the Drug
Addiction Treatment Centres Ordinance (Cap 244);
(c) is ordered to be detained in a training centre under the Training Centres
Ordinance (Cap 280);
(d) is made the subject of a probation order under section 3 of the Probation of
Offenders Ordinance (Cap 298); or
(e) attains the age of 26.
Criminal Procedure Ordinance (Cap 221), s 109AC

Arrest, etc, of persons unlawfully at large
109AC.—(1) If a person against whom a recall order is made under section 109AB(1) 5–330
is at large at the time it is made, he shall be deemed to be unlawfully at large.
(2) A police officer may, if he reasonably suspects that a recall order under section
109AB(1) is in force against a person and that that person is unlawfully at large, arrest
him and take him to a prison.
(2A) An officer of the Correctional Services Department specified in a supervision
order made under section 109AA in respect of a person against whom a recall order
has been made under section 109AB(1) or such other officer of that Department as the
Commissioner of Correctional Services may substitute for the officer so specified by a
variation of the terms of that supervision order may, if he reasonably suspects that that
recall order is in force against that person and that that person is unlawfully at large,
arrest him and take him to a prison.
(3) Any period during which a person against whom a recall order under section
109AB(1) is in force is unlawfully at large shall be disregarded in calculating the period
for which he may be detained under the recall order, unless the Chief Executive other-
wise directs in a particular case.
Prisoners (Release under Supervision) Ordinance (Cap 325), s 3
Establishment of the Release under Supervision Board
3.—There shall be a Release under Supervision Board which shall consist of not less 5–331
than 5 members appointed by the Chief Executive, and the members so appointed shall
include—
(a) a person who holds or has held judicial office, who shall be the chairman;
(b) a medical practitioner appearing to the Chief Executive to have experience
in psychiatry; and
(c) persons appearing to the Chief Executive to have experience of, or an active
interest in, the rehabilitation of offenders.
Functions of the Board
4.—The Board shall consider— 5–332
(a) applications under section 6;
(b) the conditions to be specified by the Chief Executive, and the variation or
cancellation of those conditions, under section 7(3);
(c) applications for review under sections 12(1) and 16(1);
(d) revocations that are proposed to be made under section 14(1); and
(e) revocations that have been made under section 14(3),
and shall make such recommendations to the Chief Executive as it thinks fit in respect
of those matters and of any other matters that it considers under this Ordinance.
Limitation on the powers of the Board
5.—The Board shall not consider an application by a prisoner under section 6 within 5–333
1 year after the date—
(a) of the refusal of an application made by him under that section;
(b) of the revocation under section 14(1) or (3) of a supervision order made in
respect of him; or
(c) on which under section 14(2) a supervision order made in respect of him
ceases to have effect.
559
Application for release under a supervision order
5–334 6.—Not earlier than 6 months before a prisoner is eligible for release under section
7(1) or (2), he may apply in writing to the Chief Executive through the Board for an
order for his release under that section subject to supervision.

Release under supervision
5–335 7.—(1A) For the purposes of this section, the length of sentence that a prisoner
has served shall include the length of any period by which the length of the sentence
imposed on that prisoner is treated as reduced under section 67A of the Criminal
Procedure Ordinance (Cap 221).
(1) The Chief Executive may, if the Board so recommends, order that a prisoner who—
(a) is serving a sentence of imprisonment of 3 years or more (other than impris-
onment for life); and has served not less than one-half or 20 months of that
sentence (which-ever is the greater), be released from that imprisonment
and be subject to supervision;
(b) under this Ordinance.
(2) The Chief Executive may, if the Board so recommends, order that a prisoner who—
(a) is serving a sentence of imprisonment of 2 years or more (other than impris-
onment for life); and
(b) is within 6 months of the expiry of his imprisonment (taking into account
remission under the Prison Rules (Cap 234 sub leg)),
be released from that imprisonment subject to supervision under this Ordinance, and
be required whilst under such supervision to reside in a hostel and, as far as practicable,
to obtain and remain in employment whilst so residing.
(2A) Where the prisoner is a transferred prisoner—
(a) for the purposes of subsections (1)(a) and (2)(a)—
(i) subject to subparagraph (ii), the term of the sentence of imprisonment
imposed on that transferred prisoner by a court in the sentencing place
shall be treated as the length of the sentence of imprisonment being
served by that transferred prisoner; and
(ii) where the term of that sentence of imprisonment has been commuted,
revised, modified or reduced in the sentencing place, the term of that
sentence of imprisonment as commuted, revised, modified or reduced
shall be treated as the length of the sentence of imprisonment being
served by that transferred prisoner;
for the purposes of subsections (1)(b) and (2)(b), the length of sen-
tence served by that transferred prisoner shall include the period
during which that transferred prisoner has served the sentence in the
sentencing place and
(b) the period during which the transferred prisoner has served the sentence in
Hong Kong.
(2B) Nothing in this Ordinance shall enable a transferred prisoner to be eligible
for release under this section unless at the time of an application made by him under
section 6, he has served in Hong Kong a term of not less than 12 months in respect of
the sentence of imprisonment to which the application relates.
(3) The Chief Executive may after considering the recommendations of the Board
specify such conditions as he thinks fit to be included in a supervision order and may at
any time vary or cancel them, and such conditions may include any conditions specified
in regulations made under section 20.
(4) A person who is—
(a) sentenced to imprisonment in circumstances in which he is, by virtue of section
5A(1)(a) or (2) of the Training Centres Ordinance (Cap 280), subject to the
provisions of that Ordinance on his release from that imprisonment; or
(b) subject to a removal order or a deportation order made under the
Immigration Ordinance (Cap 115),
shall not be eligible to be released under this section.
“sentencing place” – in relation to a transferred prisoner, means the place outside
Hong Kong in which the sentence was imposed on that transferred prisoner;
560
“transferred prisoner” – means any person who is sentenced in a place outside
Hong Kong and has been transferred to Hong Kong in order to serve the
sentence imposed on him or any part thereof.

Release by the Commissioner and service of suspension order
7.—(1) Where the Chief Executive makes an order under section 7(1) or (2) for the 5–336
release of a prisoner under supervision, the Commissioner shall cause a supervision
order to be drawn up in accordance with regulations made under section 20, containing
such conditions as are specified by the Chief Executive under section 7(3), and to be
served upon the prisoner, and the prisoner shall be released.
(2) Where the Chief Executive varies or cancels the conditions of a supervision order
under section 7(3), the Commissioner shall cause written notice of the variation or can-
cellation to be served personally upon the prisoner.
Duration of suspension order
9.—(1) A supervision order shall, unless previously revoked or ceasing to have effect 5–337
under section 14, remain in effect until the date on which the prisoner in respect of
whom it was made would have been released from imprisonment if he had served his
sentence of imprisonment—
(a) in the case of a supervision order made under section 7(1), without remis-
sion under the Prison Rules (Cap 234 sub leg);
(b) in the case of a supervision order made under section 7(2), with any remis-
sion for which he is eligible under the Prison Rules (Cap 234 sub leg).
(2) The date until which a supervision order is to remain in effect in accordance with
subsection (1) shall be specified in the order.
Requirements of release under supervision
10.—A prisoner who is released from imprisonment subject to a supervision 5–338
order shall—
(a) be subject to supervision by such person as shall be specified by the
Commissioner in the order; and
(b) comply with the requirements and conditions of the order.

Absence from the hostel
11.—(1) Where a prisoner is residing in a hostel by reason of a supervision order 5–339
made under section 7(2), the Commissioner may issue a permit in writing permitting
him to be absent from that hostel for a period not exceeding 5 days subject to such con-
ditions as the Commissioner thinks fit.
(2) Any prisoner to whom a permit has been issued under this section and who,
without lawful excuse, does not return to the hostel specified in that permit at or before
the expiration of the period of absence specified in the permit, or who fails to comply
with any condition imposed under subsection (1), commits an offence and is liable to a
fine of $5000 and to imprisonment for 12 months.
(3) Any person may arrest without warrant any prisoner whom he reasonably suspects
to be guilty of an offence under subsection (2).
Review
12.—(1) Where the Chief Executive refuses to make a supervision order in re- 5–340
spect of a prisoner, the Commissioner shall deliver to the prisoner notice in writing
of that fact and the prisoner may, within 14 days of receipt of the notice, apply
in writing to the Chief Executive through the Board for a review of the Chief
Executive’s decision.
(2) On review, the Chief Executive may, after considering the recommendations of
the Board, make a supervision order or make no order.
(3) A prisoner may apply for only one review of a decision.
561
Offence of failing to comply with a supervision order
5–341 13.—A person who, without lawful authority or reasonable excuse, fails to comply with
the conditions of a supervision order commits an offence and is liable to a fine of $5000
and to imprisonment for 12 months.

Revocation of supervision order
5–342 14.—(1) The Chief Executive may, after considering the recommendations of the
Board, revoke a supervision order and if he does so shall inform the Commissioner of
that fact.
(2) Where a person who is subject to a supervision order—
(a) is convicted of an offence and sentenced to imprisonment (other than a sen-
tence that is suspended); or
(b) is also the subject of a suspended sentence that is ordered to take effect
under section 109C(1)(a) or (b) of the Criminal Procedure Ordinance
(Cap 221),
the supervision order shall cease to have effect.
(3) Where it appears to him that the public interest requires that a person in respect of
whom a supervision order is in effect be re-imprisoned immediately, the Commissioner
may revoke that order.
(4) Where under this section a supervision order is revoked or ceases to have effect,
the Commissioner shall cause an order for the re-imprisonment of the person in respect
of whom the supervision order was made to be drawn up in accordance with regula-
tions made under section 20, and that person shall be arrested and surrendered into
the custody of the Commissioner, and the Commissioner shall re-imprison him for the
remainder of his sentence.
(5) An arrest under subsection (4) may be effected without a warrant, by any
person.
Action to be taken by Commissioner on re-imprisonment
5–343 15.—(1) As soon as practicable after a person is re-imprisoned under section 14(4),
the Commissioner shall inform him of—
(a) the reasons for his re-imprisonment; and
(b) his right to apply for a review of his case under section 16(1).
(2) Where a person is re-imprisoned under section 14(4)—
(a) the Commissioner shall report that fact to the Board as soon as
practicable; and
(b) the Board may, if it thinks fit, make recommendations to the Chief Executive
in relation to that person, whether or not he has applied for a review under
section 16(1).

Review following re-imprisonment
5–344 16.—(1) A person who is re-imprisoned under section 14(4) may, within 14 days of his
re-imprisonment, apply in writing to the Chief Executive through the Board for a review
of his case, unless he is re-imprisoned by reason of his supervision order ceasing to have
effect under section 14(2).
(2) The Chief Executive may, after considering the recommendations of the Board,
order under section 7(1) or (2) the release of a person who has been re-imprisoned
under section 14(4), or may make no order.
Computation of period of imprisonment
5–345 17.—In computing the remaining period of a sentence to be served by a person who
has been re-imprisoned under section 14(4)—
(a) no remission shall be granted under the Prison Rules (Cap 234 sub leg)
in respect of that part of the sentence served before his release under the
supervision order; but
562
Sect. V] Financial Penalties and Orders § 5–351
(b) the period to be served—
(i) shall be reduced by the period for which the supervision order was in
effect; and
(ii) may be further reduced by remission in accordance with the Prison
Rules (Cap 234 sub leg) in respect of that part of the sentence which is
served after the date of re-imprisonment.
Decisions final
18.—Subject to section 15(1), the Chief Executive, the Board and the Commissioner 5–346
shall be under no obligation to give any reasons for their decisions under this Ordinance,
and those decisions shall be final and not be subject to appeal to or review by any court.
Chief Executive’s powers
19.—(1) The Chief Executive shall not be bound by any recommendation of the Board. 5–347
(2) The Chief Executive may delegate the exercise of any of his powers under this
Ordinance to the Secretary for Security.
(2) Notes on supervision of young offenders

General
If a person is under 25, before being released from prison or completing a period 5–348
of supervision after release, the Commissioner for Correctional Services must make a
supervision order if the sentence was for three months or more, other than in default
of payment of a sum of money and that the person began to serve before he was 21. It
can last up to 12 months from the date of release from prison.
However, a supervision order cannot be made on a person who is subject to a re-
moval or deportation order (Immigration Ordinance (Cap 115), section 19) if a de-
tention order, supervision order or recall order that was suspended under the Drug
Addiction Treatment Centres Ordinance (Cap 244) or Training Centres Ordinance
(Cap 280) is revived on his release.
Recall order
If the Commissioner of Correctional Services is satisfied that a person under a supervi- 5–349
sion order has failed to comply with it, and that person has earned remission in prison in
respect of the period that ended on his release from prison, he can make a recall order re-
quiring that person to return to prison to be detained for the amount of time he earned as
remission. A recall order ceases to have effect if the person subject to the order is ordered
to serve a sentence of imprisonment or to be detained in an addiction treatment centre,
training centre or is put on probation or if he attains the age of 25.
Breach of supervision order

It is a summary offence to breach a supervision order. On conviction a person is 5–350
liable to a fine and imprisonment for 12 months.
V. FINANCIAL PENALTIES AND ORDERS
A. Fines
(1) Legislation
Power of court to fine

113A.—(1) Where a person is convicted of any offence, other than an offence for 5–351
which the sentence is fixed by law, the court may, if it is not precluded from sentencing
563
him by the exercise of some other power (such as the power to make a probation order
under section 3 of the Probation of Offenders Ordinance (Cap 298)), impose a fine in
lieu of or in addition to dealing with such person in any other way in which the court
has power to deal with him, subject however to any enactment requiring him to be dealt
with in a particular way.
(2) If the court imposes a fine on any person under subsection (1), the court may
make an order—
(a) allowing time for the payment of the amount of the fine; and
(b) directing payment of that amount by instalments of such amounts and on
such dates respectively as may be specified in the order. [cf 1973 chapter 62
section 31 UK]
(3) If the court imposes a fine on any person under subsection (1), the court shall
make an order fixing a term of imprisonment not exceeding 12 months which that
person is to undergo if any sum which he is liable to pay is not duly paid.
(4) In this section, “court” – includes the District Court.
General power to fine
5–352 97.—(1) Where a person is convicted of an offence other than an indictable offence
the magistrate may, if he is not precluded from sentencing the person by the exercise of
some other power (such as the power to make a probation order under section 3 of the
Probation of Offenders Ordinance (Cap 298)), impose a fine in lieu of or in addition
to dealing with the person in any other way in which the magistrate has power to deal
with him, subject however to any enactment requiring the person to be dealt with in a
particular way.
(2) In the exercise of the power under subsection (1) a magistrate shall not impose on
an offender, in default of payment of the fine, any greater term of imprisonment than
that to which the offender would have been liable under the enactment authorising the
imprisonment.
(3) A fine imposed in exercise of the power under subsection (1) shall not—
(a) in the case of a special magistrate, exceed $50000;
(b) in the case of a permanent magistrate, exceed $100000,
except where a greater sum is specifically provided for in any other Ordinance.
Imprisonment for non-payment of a pecuniary penalty pr amends awarded for an offence under the
Ordinance or any other enactment
5–353 101.—Whenever a magistrate awards a pecuniary penalty or amends for an offence
under this or any other enactment and the same is not paid forthwith, the magis-
trate may, in the absence of express provision to the contrary in any such enact-
ment, commit the offender to prison in accordance with the provisions of section
68: (Amended 30 of 1958 Schedule). Provided that where the enactment creating the
offence lays down a term of imprisonment either in addition to any pecuniary penalty
or in lieu thereof, the period of imprisonment awarded under this section shall not
exceed such a term.
Magistrates Ordinance (Cap 227), s 101A
Issue of summons or warrant for non-payment of fine
5–354 101A.—(1) Where under any enactment a fine is imposed by a magistrate on a person
and the fine is not paid forthwith or in such manner as may be allowed or directed,
subject to such enactment, a magistrate may—
(a) issue a summons to such person to appear before a magistrate, and, if that
person does not appear in answer to the summons, issue a warrant to appre-
hend him; or (See Form 28)
(b) issue, in the first instance, a warrant to apprehend such person. (See
Form 29)
(2) On the appearance of such person before a magistrate in consequence of a summons
or warrant issued under subsection (1), the magistrate may commit him to prison for such
period as may be in accordance with the scale provided by section 68: (See Form 60)
Provided that—
564
(a) where the enactment under which the fine was imposed lays down a term of
imprisonment either in addition to any pecuniary penalty or in lieu thereof,
the period of imprisonment imposed under section 68 shall not exceed such
a term;
(b) in respect of the non-payment of a fine by a person to whom time has been
allowed for payment or who has been directed to pay by instalments under
section 41—
(i) a warrant of commitment to prison shall not be issued unless the
magistrate first makes inquiry as to his means in his presence; and (See
Form 62)
(ii) after making such inquiry, the magistrate may, if he thinks fit, instead of
issuing a warrant of commitment to prison, make an order extending
the time allowed for payment or varying the amount of the instalments
or the times at which the instalments were, by the previous direction of
a magistrate, directed to be paid.
(2) Notes on fines

Fines on juveniles and corporations
While the Court is, under subsection 113A(3) of the Criminal Procedure Ordinance 5–355
(Cap 221), bound to impose a term of imprisonment if a fine is not paid, no child
under 14 years can be so sentenced (Juvenile Offenders Ordinance (Cap 226), section
11(1)). Rather the duty in subsection (3) must apply only where it is otherwise lawful
to do so. Furthermore, subsection (3) cannot apply to non-natural persons, such as a
corporation.
Fines and level numbers

Where a fine is expressed not as a monetary amount but as a level number in an 5–356
Ordinance, section 113B(1) and Schedule 8 of the Criminal Procedure Ordinance
(Cap 221) Apply to fix the following monetary amounts:
Level 1 $2,000
Level 2 $5,000
Level 3 $10,000
Level 4 $25,000
Level 5 $50,000
Level 6 $100,000
Section 113B(3) allows the Chief Executive to alter the monetary amounts by regu-
lation to reflect the effect of inflation.
Where a fine is expressed as a monetary amount in an Ordinance, section 113C(2)
applies to fix the following level numbers:
$1 to $2,000 Level 1
$2,001 to $5,000 Level 2
$5,000 to $10,000 Level 3
$10,001 to $25,000 Level 4
$25,001 to $50,000 Level 5
$50,001 to $100,000 Level 6
Level numbers do not apply to fines above $100,000, daily fines or fixed penalty
fines (section 113B(1). The Chief Executive may also by regulation alter the monetary
amounts to reflect the effect of inflation (section 113C(4)).
Where the amount of a fine is fixed in an Ordinance, this amount is deemed to
be the maximum amount that may be imposed (section 101F(a) of the Criminal
Procedure Ordinance (Cap 221)).
565
Magistrates and Indictable Offences
5–357 A Permanent Magistrate may impose a fine of up to $100,000 on conviction of an
indictable offence tried summarily (section 92 of the Magistrates Ordinance) (Cap
227). A Special Magistrate may in this circumstance impose a fine of $50,000 (section
91 of the Magistrates Ordinance).
Determining the amount of the fine

5–358 The fine is a straightforward means of confiscating the proceeds of crime: R v
Garner (1987) 7 Cr App R (S) 285. The fine should be of an amount which makes clear
to the defendant that crime does not pay: HKSAR v Chan Mun Tong (HCMA 1350/
2000). The quantum of the fine should be tailored according to the resources of the
defendant: R v Charito (HCMA 542/1993).
It is wrong in principle to impose a fine on the assumption that it will be paid by
some other person, such as the instigator of the offence who has not been appre-
hended: R v Captain Hsieh Chin Chien [1981] HKLR 162.
A fine must be within the capacity of the accused: Att-Gen v Pang Lau [1975] HKLR
297. Otherwise it is in effect a term of imprisonment (Architects Registration Council v
Breeze (1975) 57 Cr App 654). Conversely a term of imprisonment should not be re-
duced or suspended merely because an accused has the capacity to pay an additional
fine Att-Gen v Ki Hon [1988] 2 HKLR 220. In determining the fine, earning capacity
of the accused as well as assets can be considered by the court: R v Lewis [1965] Crim
LR 121.
Where an accused is convicted and fined for more than one offence, a fine must, ac-
cording to the separate sentence principle, be attached to each individual offence: Att-
Gen v Wong Sek Shing [1989] 1 HKLR 192.
If a defendant has spent time in custody prior to the imposition of a fine, it may be
appropriate for the court to make an allowance for this in fixing the level of the fine: R
v Warden [1996] 2 Cr App R (S) 269, CA.
Where a magistrate considers ordering that the fine be deducted from bail money,
he should give the defendant an opportunity to make representations. If the de-
fendant said the bail money did not belong to him, the magistrate should consider
whether this is credible. Absent the defendant’s agreement, the magistrate should not
order that the fine be deducted from bail money: HKSAR v Vy Sinh Ky (HCMA 456/
2003, [2003] 3 HKLRD L9).
Payment by instalments
5–359 Section 113A(2) of the Criminal Procedure Ordinance (Cap 221) and section 101A
of the Magistrates Ordinance (Cap 227) authorise payment of fines by instalments.
There is nothing wrong in principle with the period of payment being longer than
one year, provided that it is not an undue burden and too severe a punishment, having
regard to the nature of the offence and the offender: R v Olliver and Olliver 11 Cr App
R (S) 10, CA (a two-year period would seldom be too long, and in an appropriate case
three years would be unassailable). A longer period of payment by instalments may
be appropriate where a fine is imposed on a company: R v Rollco Screw and Rivet Co Ltd
[1999] 2 Cr App R (S) 436, CA.
Where payment by instalments is ordered, the term of imprisonment or detention
that the court is obliged to fix should be expressed to be in default of the fine, and not
of any one instalment: see R v Aitchison and Bentley (1982) 4 Cr App R (S) 404, CA; R
v Power (1986) 8 Cr App R (S) 8, CA.
Combined with custodial sentence

5–360 A fine may properly be combined with a sentence of imprisonment, particularly
where the offender has made a profit from the offence: HKSAR v Yau [1999] 2
HKLRD 633.
A fine should not be imposed for the purpose of depriving the offender of the
proceeds of supposed offences of which he has not been convicted and which are not
566
admitted: see R v Ayensu and Ayensu (1982) 4 Cr App R (S) 248, CA; R v Johnson (1984)
6 Cr App R (S) 227, CA.
Where an offender has not made a profit from an offence it is inappropriate to
impose substantial fines as well as a substantial custodial sentence: R v Maund (1980)
2 Cr App R (S) 289. Both a fine and a custodial sentence may be imposed where the
maximum term of imprisonment does not adequately reflect the criminality of the
offence: R v Garner (1985) 7 Cr App R (S) 285.
A custodial sentence together with the sentence on default of paying a fine should
not be disproportionate to the criminality of the offence involved: R v Green and Green
(1984) 6 Cr App R (S) 329.
Combined with sentences not involving immediate custody

Where a fine is imposed in conjunction with a suspended sentence, the court should 5–361
take particular care to ensure that the offender has the means to pay the fine: see R v
King (1970) 54 Cr App R 362, CA; and R v Whybrew (1979) 1 Cr App R (S) 121, CA. It
is wrong to impose a fine in conjunction with a suspended sentence in a case where
the fine standing alone would be an adequate penalty: see R v Ankers (1975) 61 Cr
App R 170, CA.
Where legislation provides for the imposition of a penalty instead of a sentence (for
example a training centre order) and that penalty is imposed, it cannot be combined
with a fine, since the fine is a sentence. However a fine and a penalty in the nature
of a sentence may be imposed on the same occasion but for different offences: R v
McClelland (1951) 35 Cr App R 22.
Juveniles and fines

Section 10(1) of the Juvenile Offenders Ordinance (Cap 226) authorises any court 5–362
to fine a child or young person and may further order that the fine imposed on a child
be paid by a parent or guardian.
Time spent in custody on remand

Where an offender has spent time in custody on remand before a fine is imposed, 5–363
it will usually be appropriate to make an allowance for that time in fixing the amount
of the fine: R v Warden [1996] 2 Cr App R (S) 269.
Fine and fixed penalty

In HKSAR v Wong King Kwong [2006] 1 HKLRD 136, the defendant was convicted 5–364
after trial of depositing litter in public place contrary to section 4(1) of the Public
Cleansing and Prevention of Nuisances Regulation made under the Public Health
and Municipal Services Ordinance (Cap 132). He was fined $1,500. On appeal, it was
argued that the magistrate had originally intended to impose a fine of $500 but had
been misled into thinking that he did not have a discretion to impose any fine other
than a fixed penalty. It was held that there was nothing in the relevant legislation to
require the magistrate to impose a fixed penalty. The magistrate was entitled to im-
pose a fine in the light of the circumstances of the case and to exercise such discretion
as was appropriate.
In HKSAR v Chong Ming Chit (HCMA 882/2006) [2007] CHKEC 15, [2007] 1
HKLRD B4, the defendant was convicted after trial of dumping litter in a public
place and ordered to pay a fine of $1,500, an additional fine of $1,500 and costs
of $500, totalling $3,500. The additional fine was imposed as the ’defence was friv-
olous or vexatious, within the meaning of section 12 of the Fixed Penalty (Public
Cleanliness Offences) Ordinance (Cap 570). It was held that a defence might not
be frivolous or vexatious where it was based on a misunderstanding of the relevant
law, but here the’ defence was nothing more than a blanket denial of the prosecu-
tion case and a claim of fabrication. Such a defence could not be a mistake of law
and was plainly frivolous or vexatious, and it followed that the additional fine was
properly imposed.
567
B. Compensation Orders
(1) Legislation
Criminal Procedure Ordinance s 73
5–365 (1) Where a person is convicted of an offence, the court may, in addition to passing
such sentence as may otherwise by law be passed or making an order under section 107(1),
order the person so convicted to pay to any aggrieved person such compensation for—
as it thinks reasonable.
(2) The amount ordered as compensation under subsection (1) shall be deemed a
judgment debt due to the person entitled to receive the same from the person so con-
victed. (Amended 23 of 2002 section 7)
(3) If before an order for compensation is made, any money—
(a) was taken from the person so convicted on his apprehension, arrest, being
taken into custody or his surrender to custody; or
(b) was paid into court by the person so convicted,
the court may, on making the order, order that the compensation be paid out of any
money so taken or paid. (Added 23 of 2002 section 7)
(4) Subsection (3) shall not apply to any money that is a first charge for the benefit
of the Director of Legal Aid within the meaning of section 18A(1) of the Legal Aid
Ordinance (Cap 91). (Added 23 of 2002 section 7)
(5) Payment of the compensation may be enforced at the instance of any person en-
titled thereto in the same way as a judgment debt.
5–366 98. Where a magistrate makes an order under section 36(1) or convicts a person of an
offence and passes such sentence (if any) as may otherwise by law be passed, he may,
in addition to the order or sentence, order the offender to pay to any aggrieved person
such compensation for—
not exceeding $100,000, as he thinks reasonable.
(2) Notes on compensation orders

Principles regulating compensation
5–367 In a suitable case, a compensation order is appropriate as “a matter of principle”: R
v Li Chi Wah [1995] 1 HKCLR 120. An order compensates the victim in a summary
way, which avoids the need for civil proceedings. It is a substitute for the sum a civil
court might be expected to order a defendant to pay to a plaintiff: Att-Gen v Lau Chiu
Tak [1984] HKLR 23. A compensation order should not be made on the assumption
that it will be paid by someone other than the accused: R v Mortimer [1977] Crim L R
624. It is a means of holding the offender to account for his actions.
“In addition to”

5–368 A compensation order cannot be made alone. It must be made at the same time as
the sentence or other order (Att-Gen v Kwong Kin Wing [1989] 2 HKLR 3; R v Wong
Munyee (HCMA 421/88)). The District Court or the Court of First Instance do not
have the jurisdiction to order imprisonment in default of payment of a compensation
order: see R v Tang Wan-yau (CACC 554/94); section 73 of the Criminal Procedure
Ordinance (Cap 221). On the other hand, magistrates are empowered to impose such
an order: sections 68 and 98 of the Magistrates Ordinance (Cap 227); see also HKSAR
v Chiang See Wai [2010] 3 HKC 313.
568
The principles for the imposition of a compensation order are: (1) the compen-
sation order is not an alternative to a sentence, (2) it should be made only where
the legal position is quite clear, (3) the means of the defendant must be considered,
(4) the compensation order must be precise and must be related to an offence in
respect of which the defendant has been convicted or has asked to have taken into
account, (5) it must not be oppressive, (6) it may be made for good moral grounds
and (7) it must be realistic and should avoid payment by instalments over a long
period. See HKSAR v Chan Nai Keung [2008] 2 HKC 378.
“Personal injury, loss or damage”

A compensation order may be made only in respect of personal injury, loss or 5–369
damage which results from an offence of which the offender is convicted, or an offence
which is taken into consideration if property is stolen and recovered undamaged, it
is not open to the court to make a compensation order in respect of the value of the
goods: see R v Hier (1976) 62 Cr App R 233, CA; R v Tyce (1994) 15 Cr App R (S) 415,
CA. Similarly, if the offender is acquitted of an offence out of which loss, damage or
injury is said to have arisen, but convicted of some other offence related to the same
subject matter, a compensation order cannot be made: see R v Halliwell (1990-91) 12
Cr App R (S) 692, CA; R v Graves (1993) 14 Cr App R (S) 790, CA. The question is not
whether the loss results solely from the offence, but whether it can “fairly be said to
result from the offence”: Rowlston v Kenny (1982) 4 Cr App R (S) 85, CA.
Where an offender is indicted on a limited number of specimen charges which
are representative of a larger number of offences, but none of the other offences
are taken into consideration, the compensation order must be limited to the loss or
damage resulting from the specimen charges and may not include an amount re-
flecting the other offences: R v Crutchley and Tonks (1994) 15 Cr App R (S) 627, CA,
followed in R v Hose (1995) 16 Cr App R (S) 682, CA. It is not necessary that the loss,
damage or personal injury should be inflicted intentionally: see R v Corbett (1993) 14
Cr App R (S) 101, CA. The fact that the person who suffered the loss has died does not
necessarily mean that it is inappropriate to order compensation: Holt v DPP [1996] 2
Cr App R (S) 314, DC.
Non-actionable loss
It is not necessary that the loss, damage or personal injury should be actionable: R 5–370
v Chappell (1984) 6 Cr App R (S) 214, CA.
Determination of amount of loss

In R v Vivian (1979) 68 Cr App R 53, the Court of Appeal stated that “no order 5–371
for compensation should be made unless the sum claimed by way of compensation is
either agreed or proved”: see also R v Muriel Leung (HCMA 251/92). The principle
that a compensation order should not be made unless the fact that a loss has been in-
curred, and the extent of the loss, are either proved or admitted, was applied in R v Li
Chi Wah [1995] 1 HKCLR 120.
Avoiding difficult or complex issues as to liability

Compensation orders should generally be confined to straightforward cases. If the 5–372
issues engaged are other than clear, they might in general to be left to the civil courts
to resolve: HKSAR v Lung Wai Hung [1998] 1 HKLRD 598. In R v White [1996] 2 Cr
App R (S) 58, Owen J said a compensation order should only be made “where there is
no question of a difficult or complex issue as to liability”.
Personal injury cases

There should be detailed information about the precise injuries suffered: R v Cooper 5–373
(1982) 4 Cr App R (S) 55, CA; R v Welch (1984) 6 Cr App R (S) 13, CA.
569
Emotional distress, etc
5–374 Compensation orders in modest amounts for emotional distress and related mat-
ters have been upheld: see R v Thomson Holidays Ltd [1974] QB 592; CA.
There must be some evidence that the person concerned did experience distress or
shock; the court is not necessarily justified in inferring from the facts of the offence
that a witness was distressed: see R v Vaughan (1990-91) 12 Cr App R (S) 46, CA.
Interest
5–375 A compensation order may properly include an amount in respect of interest, par-
ticularly where the amounts are large and the relevant period a long one, provided
that the amount can be calculated without complication: R v Schofield (1978) 67 Cr
App R 282, CA.
The means of the offender

5–376 The means of the offender should be taken into account before a compensation
order is made: HKSAR v Cheung Chun Wing [2000] 1 HKLRD 189. This may require
the court to alert counsel as to what is in contemplation and to conduct an inquiry: R
v Hewitt [1990] 12 Cr App R (S) 466. Future ability to earn is relevant to capacity: R v
Hoyt [1993] 77 CCC (30) 289.
Compensation orders have frequently been set aside for lack of sufficient inquiry
as to means: see R v Phillips (1988) 10 Cr App R (S) 419, CA, in which it was said that
problems could be avoided if the sentencing judge indicated a provisional amount by
way of compensation: he was then fully entitled to turn to defence counsel to ask him
to provide information about the means of the defendant. If the defendant was ob-
durate and insisted on keeping silent, that might in some cases afford a basis for the
court to draw inferences as to his financial position. Where there is material before
the court which suggests that the offender is in possession of substantial resources, a
compensation order may properly be made even though no precise evidence of the
offender’s means is available to the court: see R v Bolden (1987) 9 Cr App R (S) 83, CA,
and R v Owen (1990-91) 12 Cr App R (S) 561, CA.
The means of third parties

5–377 As a general rule, the court should not make a compensation order against an of-
fender without means on the assumption that the order will be paid by other persons,
such as relatives or friends: see R v Mortimer [1977] Crim L R 624, CA, applying R v
Inwood (1974) 60 Cr App R 70, CA. If only one of the culprits has the means to pay,
a court may order that accused to pay compensation: R v Beddow (1987) 9 Cr App R
(S) 235.
Duty of counsel
5–378 Counsel should ensure that information placed before the court in relation to com-
pensation is accurate: R v Roberts (1987) 9 Cr App R (S) 275, CA. It is not incumbent
upon the prosecution to establish that the defendant can meet the order: R v Johnstone
(1982) 4 Cr App R (S) 141. Defence counsel should be in a position to advise the court
as to the appropriateness of a compensation order, as to quantum and as to capacity to
pay: R v Fung Wai Keung [1987] 3 HKC 452.
Period of payment
5–379 Excessive periods for the payment of a fine are best avoided: Colfox v Dorset County
Council [1997] COD 184. The test is that “an order for compensation should not
stretch over too long a period”: HKSAR v Ng Wan Lung (HCMA 853/2000, [2000]
HKEC 1048). In appropriate cases a period of two years, or three years in exceptional
cases, would not be open to criticism: R v Olliver and Olliver (1989) 11 Cr App R (S) 10,
CA. It is open to a court to order that a fixed sum be paid after a fixed term: R v Li Chi
Wah [1995] 1 HKCLR 81.
570
Sale of assets to raise funds
Where it is proposed to make a compensation order against an offender on the 5–380
assumption that he will raise the necessary funds by selling an asset, it is essential that
the court should have a proper valuation of the article concerned before making the
order. In R v Chambers (1981) 3 Cr App R (S) 318, CA, Lord Lane CJ stated that it was
for the trial court to ascertain the value of the article concerned; if it could not be
properly valued, no compensation order should be made.
The English Court of Appeal has generally discouraged the making of compen-
sation orders on the basis that the offender will raise the funds by the sale of the
matrimonial home, especially if the consequence is that his family will become home-
less: see R v Butt (1986) 8 Cr App R (S) 216, CA; R v Hackett (1988) 10 Cr App R
(S) 388, CA; and R v Holah (1989) 11 Cr App R (S) 282, CA. But this is not an absolute
rule: see R v McGuire (1992) 13 Cr App R (S) 332, CA (compensation order upheld as
the appellant had enough left over to buy less expensive house).
Offenders receiving custodial sentence

A compensation order should not be made if its effect would be to subject the 5–381
offender on his discharge from custody to a financial burden which he would not
be able to meet from his available resources and which might encourage him to
commit further crime to obtain the means to meet the requirements of the order: R
v Panayioutou (1989) 11 Cr App R (S) 535, CA: see also R v Clarke (1990-91) 12 Cr
App R (S) 10, CA. Where the offender has assets, it is not necessarily wrong to make
a compensation order in conjunction with a custodial sentence: R v Martin (1989) 11
Cr App R (S) 424, CA: see also R v Jorge [1999] 2 Cr App R (S) 1, CA; and R v Love and
Tompkins [1999] 1 Cr App R (S) 484, CA.
Inability to pay compensation is not a matter that should affect the length of his
sentence. The significance of an offer to pay compensation is that it might be taken
as some token of remorse on the defendant’s behalf as well as redressing the victim’s
loss. To that extent and no further it features in the sentencing exercise; compensa-
tion orders are otherwise wholly independent of that exercise: see R v Barney (1989)
11 Cr App R (S) 448, CA.
Where a compensation order is made against an offender who at the same time
receives a suspended sentence or is made the subject of a community order, a
court which subsequently activates the suspended sentence or, upon revocation
of the community order, re-sentences for the original offence to custody, has no
power to review the compensation order, even though the result of the court’s ac-
tion will be to prevent the offender from earning the funds with which to pay the
compensation.
C. Restitution Orders
(1) Legislation
Restitution of property
84.—(1) Subject to the provisions of the Pawnbrokers Ordinance (Cap 166), where 5–382
any person is convicted of an indictable offence, any property found in his possession,
or in the possession of any other person for him, may be ordered by the court or magis-
trate to be delivered to the person who appears to the court or magistrate to be entitled
thereto. (Replaced 17 of 1930 section 8)
(2) Nothing in this section shall prevent any magistrate or the court from ordering
the return to any person charged with an indictable offence, or to any person named
by the magistrate or the court, of any property found in the possession of the person so
charged or in the possession of any other person for him, or of any portion thereof, if
the magistrate or the court is of opinion that such property or portion thereof can be
returned consistently with the interests of justice and with the safe custody or otherwise
of the person so charged.
571
Theft Ordinance (Cap 210), s 30
5–383 30.—(1) Where goods have been stolen, and a person is convicted of any offence with
reference to the theft (whether or not the stealing is the gist of his offence), the court
by or before which the offender is convicted may on the conviction exercise any of the
following powers—
(a) the court may order anyone having possession or control of the goods to re-
store them to any person entitled to recover them from him; or
(b) on the application of a person entitled to recover from the person convicted
any other goods directly or indirectly representing the first-mentioned goods
(as being the proceeds of any disposal or realisation of the whole or part of
them or of goods so representing them), the court may order those other
goods to be delivered or transferred to the applicant; or
(c) on the application of a person who, if the first-mentioned goods were in the
possession of the person convicted, would be entitled to recover them from
him, the court may order that a sum not exceeding the value of those goods
shall be paid to the applicant out of any money of the person convicted
which was taken out of his possession on his apprehension.
(2) Where under subsection (1) the court has power on a person’s conviction to make
an order against him both under paragraph (b) and under paragraph (c) with reference
to the stealing of the same goods, the court may make orders under both paragraphs
provided that the applicant for the orders does not thereby recover more than the value
of those goods.
(3) Where under subsection (1) the court on a person’s conviction makes an order
under paragraph (a) for the restoration of any goods, and it appears to the court that
the person convicted has sold the goods to a person acting in good faith, or has bor-
rowed money on the security of them from a person so acting, then on the application
of the purchaser or lender the court may order that there shall be paid to the applicant,
out of any money of the person convicted which was taken out of his possession on his
apprehension, a sum not exceeding the amount paid for the purchase by the applicant
or, as the case may be, the amount owed to the applicant in respect of the loan.
(4) The court shall not exercise the powers conferred by this section unless in the opinion
of the court the relevant facts sufficiently appear from evidence given at the trial or the avail-
able documents, together with admissions made by or on behalf of any person in connection
with any proposed exercise of the powers; and for this purpose “the available documents”
means any written statements or admissions which were made for use, and would have been
admissible, as evidence at the trial, the depositions taken at any committal proceedings and
any written statements or admissions used as evidence in those proceedings.
(5) Any order under this section shall be treated as an order for the restitution of
property within the meaning of section 83X of the Criminal Procedure Ordinance
(Cap 221).
(6) References in this section to stealing are to be construed in accordance with
section 26(1) and (4).
Prevention of Bribery Ordinance (Cap 201), s 12(1)
5–384 12.—(1) Any person guilty of an offence under this Part, other than an offence under
section 3, shall be liable—
(a) on conviction on indictment—
(i) for an offence under section 10, to a fine of $1,000,000 and to impris-
onment for 10 years;
(ii) for an offence under section 5 or 6, to a fine of $500,000 and to impris-
onment for 10 years; and
(iii) for any other offence under this Part, to a fine of $500,000 and to im-
prisonment for 7 years; and (Replaced 50 of 1987 section 3)
(b) on summary conviction—
(i) for an offence under section 10, to a fine of $500,000 and to imprison-
ment for 3 years; and
(ii) for any other offence under this Part, to a fine of $100,000 and to im-
prisonment for 3 years, (Replaced 50 of 1987 section 3)
and shall be ordered to pay to such person or public body and in such manner as the
court directs, the amount or value of any advantage received by him, or such part thereof
as the court may specify.
572
Prevention of Bribery Ordinance (Cap 201), s 12AA
12AA.—(1) Subject to this section, where a person is convicted on indictment of an of- 5–385
fence under section 10(1)(b) the court may, in addition to any penalty imposed under
section 12(1), order the confiscation of any pecuniary resources or property—
(a) found at the trial to be in his control as provided in section 10; and
(b) of an amount or value not exceeding the amount or value of pecuniary re-
sources or property the acquisition of which by him was not explained to the
satisfaction of the court.
(2) Any application for an order under subsection (1) shall be made by the Secretary
for Justice within 28 days after the date of the conviction. (Amended LN 362 of 1997)
(3) An order under subsection (1) shall not be made in respect of pecuniary re-
sources or property held by a person other than the person convicted unless that other
person has been given reasonable notice that such an order may be made and has had
an opportunity to show cause why it should not be made.
(4) An order under subsection (1) shall not be made in respect of pecuniary resources
or property held by a person other than the person convicted if that other person sat-
isfies the court in any proceedings to show cause under subsection (3) that he had—
(a) acted in good faith as regards the circumstances in which the pecuniary re-
sources or property came to be held by him; and
(b) so acted in relation to the pecuniary resources or property that an order in
the circumstances would be unjust.
(5) Nothing in subsection (4) shall be construed as limiting the court’s discretion to
decline to make an order under subsection (1) on grounds other than those specified
in subsection (4).
(6) An order under subsection (1)—
(a) may be made subject to such conditions as the court thinks fit in all the cir-
cumstances of the case; and
(b) may be made in respect of an offence under section 10(1)(b) where the facts
that gave rise to that offence occurred before the date of commencement of
the Prevention of Bribery (Amendment) Ordinance 1987 (50 of 1987).
(7) A court may make orders under both subsection (1) and section 12(3) in respect
of the same offence but shall not make orders under both provisions in respect of the
same pecuniary resources or property.
(8) An order under subsection (1) may make provision for taking possession of pe-
cuniary resources or property to which the order applies and for the disposal of such
resources or property by or on behalf of the Government.
Pawnbrokers Ordinance (Cap 166), s 23
23.—(1) Where in any proceedings before a court or magistrate— 5–386
(a) it appears that any goods have been unlawfully pawned with a pawnbroker; or
(b) a person has been convicted of an offence under this Ordinance and it ap-
pears that any goods brought before the court or magistrate by which he is
convicted in connexion with the offence have been pawned with a pawn-
broker, whether or not the pawnbroker is the person so convicted,
the court or magistrate shall dispose of the goods in the manner provided by this section.
(2) The court or magistrate may, in respect of any goods to which subsection (1) ap-
plies, of its or his own motion or upon application—
(a) on proof of ownership of the goods, make, subject to subsection (3), an
order for the delivery or non-delivery thereof to the owner—
(i) on payment to the pawnbroker of the amount of the loan advanced by
him thereon and the interest due; or
(ii) on payment to the pawnbroker of any part of such loan or interest; or
(iii) without payment to the pawnbroker of any part of such loan or interest,
as may seem just in all the circumstances;
(b) if ownership of the goods cannot be established or where the owner cannot
be found, make an order that the goods be sold or retained in the possession
of the Commissioner; or
(c) make an order that the goods be forfeited to the Government. (Amended 71
of 1999 section 3)
(3) In the making of an order under subsection (1)(a), the court or magistrate
shall take into account the conduct of the owner and of the pawnbroker and consider
573
whether the fault or carelessness of either party has caused or contributed to the un-
lawful pawning of the goods and shall as regards the apportionment between them of
any loss or damage—
(a) in the case where the court or magistrate finds—
(i) that no fault or carelessness in their conduct; or
(ii) that equal fault or carelessness in their conduct,
has caused or contributed to the unlawful pawning of the goods, appor-
tion the loss or damage in equal shares;
(b) in the case where the court or magistrate finds that the fault or carelessness
in the conduct of the owner or of the pawnbroker, as the case may be, has
caused or contributed to the unlawful pawning of the goods in the whole or
in the greater part, apportion the loss or damage in such whole or greater
part, having regard to their respective shares in the responsibility for such
unlawful pawning.
(4) Where any person claims ownership of the goods, no order shall be made by the
court or magistrate under subsection (2) unless the pawnbroker and the alleged owner
have been given an opportunity of being heard.
(5) Any order made by the court or magistrate under subsection (2) shall bar any civil
remedy which the owner or any other person would have had for the recovery of the
goods, and the owner shall not be entitled to claim the return of the goods except under
the terms of such order.
(6) No order for the delivery, sale or forfeiture of goods shall be made under subsec-
tion (2) unless the court or magistrate is satisfied that the goods will not be required as
an exhibit in any proceedings.
(7) Where under subsection (2)(b) a court or magistrate orders the sale or retention
of goods, and no person commences proceedings to establish his ownership of or en-
titlement to the goods, or the proceeds of sale thereof, within 6 months from the date
such order is made, the goods or the proceeds of sale shall become the property of the
Government. (Amended 71 of 1999 section 3)
(8) An order made under subsection (2), other than an order for retention of goods,
shall not be carried out until the period allowed for making an appeal against the order
has expired, or where such an appeal is duly made, until the appeal has been finally de-
termined or abandoned.
(9) In this section “owner” includes—
(a) any person having ownership of goods at the time of pawning;
(b) any person having ownership of goods pawned without his authorisation; and
(c) any person from whom the pawner obtained the goods by fraudulent, un-
lawful or illegal means.

5–387 102.—(1) Where—
(a) any property has come into the possession of a court, the police or the
Customs and Excise Service in connection with any offence;
(b) it appears to a court that an offence has been committed in respect of any
property in the possession of the court, the police or the Customs and Excise
Service; or
(c) it appears to a court that any property in the possession of the court, the po-
lice or the Customs and Excise Service has been used in the commission of
an offence,
then, whether or not the offence was committed or appears to have been committed
in Hong Kong, a court may dispose of such property in the manner provided in this
section. (Amended 46 of 1977 section 16)
(2) Of its own motion or upon application, a court may—
(a) in respect of property to which subsection (1)(a) applies—
(i) make an order for the delivery of any such property to the person who
appears to the court to be entitled thereto;
(ii) where the person so entitled is unknown or cannot be found, make
an order that the property be sold or retained in the possession of the
court, the police or the Customs and Excise Service; or (Amended 46
of 1977 section 16; 13 of 1995 section 56)
(iii) if the property is of no value, order that the property be destroyed; and
(Added 13 of 1995 section 56)
574
(b) in respect of property to which subsection (1)(b) or (c) applies—
(i) deal with such property under paragraph (a) in the like manner as
property to which subsection (1)(a) applies; or
(ii) make an order for the forfeiture of the property.
(3) Save where the property is perishable, no order for the delivery, sale or forfeiture
of property shall be made under subsection (2) unless the court is satisfied that the prop-
erty will not be required as an exhibit in any proceedings before a court.
(4) Where under subsection (2) a court orders the sale or retention of property, and
no person establishes a claim to the property or the proceeds of sale thereof within
6 months from the date such order is made, the property or the proceeds of sale shall
become the property of the Government. (Amended 39 of 1999 section 3)
(5) An order made under subsection (2), other than an order for the retention of
property, shall not, except when the property is a live animal, bird or fish or is perish-
able, be carried out until the period allowed for making an appeal against the order has
expired or, where such an appeal is duly made, until the appeal has been finally deter-
mined or abandoned.
(6) Where by any other Ordinance it is provided that any particular property or class
of property shall or may be forfeited, destroyed or disposed of, then the provisions of
such Ordinance shall prevail.
(7) The power conferred on a court by subsection (2)(b)(ii) to order the forfeiture
of property shall not apply in respect of immovable property or any aircraft, motor ve-
hicle or ship.
(8) In this section “court” includes a magistrate.
(2) Notes on restitution orders

Evidence and Procedure
An offender ought not to be permitted “to keep his ill-gotten gains”: HKSAR v 5–388
Ma Kim Hung (CACC 33/2002, [2002] HKEC 575). However, the power to order the
restitution of property can only be exercised on the basis of clear statutory provi-
sion: Malone v Commissioner of Police [1970] 1 All ER 256. See also Webb v Chief Constable
of Merseyside [2000] 1 All ER 209. If difficult questions of law are likely to arise resti-
tution is best left to the civil courts: Stamp v United Dominions Trust [1967] 1 QB 418.
Likewise, if the extent of competing claims is not known and the matter is specula-
tive: HKSAR v Lung Wai Hung [1998] 1 HKLRD 598. If, however, as Woolf J explained
in R v Calcutt and Varty [1985] 7 Cr App R (S) 385, the evidence is clear, then:
“it is important that the court should make proper use of the power to order resti-
tution since this can frequently avoid unnecessary expense and delay in the victim
receiving the return of his property”.
Section 2 of the Criminal Procedure Ordinance (Cap 221) defines property as includ-
ing “goods, chattels, money, valuable securities, and every other matter or thing, whether
real or personal, upon or with reference to which any offence may be committed”.
Section 30 of the Theft Ordinance (Cap 210) provides a power for a Court to order
the restitution of stolen goods, their proceeds, or their monies worth from a convicted
person to the victim. The conviction need not be for theft but for an offence “with ref-
erence to the theft”. If the goods are in the possession or control of a known person an
order of restitution may be made for any person entitled to them (section 30(1)(a)).
If the goods have been disposed of or realised, the proceeds of those goods may be
the subject of a restitution order on the application of the person entitled to recover
them (section 30(1)(b)). If the convicted person is not in the possession of the goods
but on his apprehension is in the possession of money, the money may be the subject
of a restitution order up to the value of the goods, on the application of the person
who would have been entitled to recover the goods (section 30(1)(c)). If a bailee of
goods as security is in control of them, the goods may be restored to the owner under
section 30(1)(a) and the bailee may then apply for an order under section 30(1)(c)
for money taken from the offender as compensation for any loss suffered.
Under section 30(1)(c) it is not necessary to show that the money is the proceeds
of the offence, only that the money is in the possession of the offender. The amount
of money ordered to be taken may exceed any money the offender received for the
offence as long as the value of the relevant goods is not exceeded (R v Lewis [1975]
575
Crim L R 353). It would seem that section 30(1)(c) is complied with if money is taken
from an arrested person’s control within a reasonable time after arrest: R v Ferguson
(1970) 54 Cr App R 410.
Section 30(5) makes any order of restitution subject to section 83X of the Criminal
Procedure Ordinance. This has the effect of suspending the order until 28 days after
conviction or until any appeal is determined. An order of restitution is enforceable as
an ordinary Court order. Unlike the compensation order a restitution order may be
imposed without enquiring into the means of an offender.
Restitution after corruption convictions

5–389 Section 12(1) of the Prevention of Bribery Ordinance (Cap 201) makes it manda-
tory for a court to order an offender to pay a “person or public body” the advantage
received or any part that a court may specify: Att-Gen v Gurung and Armitage [1989] 2
HKLR 338. The “person” referred to in section 12(1) are the five persons defined to
be a “principal” in section 2(1): Caltex Oil Hong Kong Ltd v Deputy Judge Christie (HCMP
1542/1994). It is not necessary for the receiver of the restitution to have incurred a
loss. Section 12(2) makes it mandatory for a civil servant soliciting or accepting an ad-
vantage to pay the restitution to the Government.
Pawnbrokers
5–390 Section 23 of the Pawnbrokers Ordinance (Cap 166) gives a power to a court to
order the disposal of unlawfully pawned goods. Where an owner of goods has been
identified the goods may be returned to that person subject to the payment of such
part of the money loaned by the pawnbroker as the court sees fit. In determining
whether the owner should pay any part of the money loaned the court shall take into
account to what extent the fault or carelessness by either the owner or the pawnbroker
contributed to the unlawful pawning (s 23(3)). Where there is no or equal blame a
court shall apportion any loss suffered in equal shares (s 23(3(a)). Otherwise each
party bears a loss according to their degree of blameworthiness (s 23(3(b)). The effect
of an order is to bar any civil claim by the owner (s. 23(5)).
Court exhibits
5–391 Where an offence has been committed in respect of any property, or property has
been used in the commission of an offence, or property has come into the posses-
sion of a court, the police, or the customs and excise service, the court may order the
property to be returned to the person entitled to it (Criminal Procedure Ordinance, s
102(2)(a), (b)) (Cap 221). Where the property has been used in connection with an
offence or an offence has been committed in respect of any property, that property
may also be forfeited (s 102(2)(b)(ii)).
Restitution and mitigation

5–392 Restitution is relevant as mitigation: HKSAR v Chiu Peng [2002] 1 HKLRD 185. It
is a factor to which the court should attach “real weight”: Secretary for Justice v Hui Siu
Man [1999] 2 HKLRD 236. A mere “willingness” to make restitution is not a sufficient
reason to reduce sentence: HKSAR v Yu Tak Kwong (CACC 169/2002, [2002] HKEC
1416). Restitution that is only made at the last moment will count for less: HKSAR v
Wong Kam Tat [2002] HKLRD (Yrbk) 348. Restitution made after sentence and prior
to appeal is still a relevant factor: HKSAR v Lai Mei Yuk, Candy [2004] 2 HKC 83.
VI. FORFEITURE ORDERS

General
5–393 An order of forfeiture “falls to be regarded as a matter of sentence, rather than con-
viction”: HKSAR v Ramadhani [2015] 2 HKLRD 696, per Lunn VP. When forfeiture is
576
Sect. VI] Forfeiture Orders § 5–394
sought, the specific basis should be indicated in the application so that its legal and
factual basis can be identified: HKSAR v Shoki [2015] 4 HKC 55.
The purpose of making an order of forfeiture is ‘to act as a deterrent to serious il-
legal activity and to protect the revenue’: Wong Hon Sun v HKSAR (2009) 12 HKCFAR
877 (CFA). Orders of forfeiture are appropriate in straightforward cases. If the matter
is complicated, perhaps with competing claims, it is best left to the civil courts. Before
an order is made, the court should be satisfied of the nexus between the property in
question and the offence of which the accused has been convicted. To those affected
by a forfeiture order, it may represent ‘a substantial penalty’: R v Wong Shiu Lun [1992]
2 HKC 555.
To the extent that the court has a discretion in the matter, and sometimes forfeiture
is automatic or mandatory, it is of importance not to ‘ “overdo the ’punishment”: R v
Buddo [1982] 4 Cr App R (S) 268. At the same time, the courts must be careful not
to frustrate the objective of the legislation or to impair its effectiveness: R v Ngai Wai
(HCMA 750/1985, [1985] HKEC 73). Courts should always keep in mind that if for-
feiture is not directed, the property concerned may be used for other criminal pur-
poses: R v Shiu Cho Kee [1986] HKLR 207.
A forfeiture order is sometimes directed at the defendant, and is a part of
the punishment for the offence. At other times it may be directed at a third
party, and will serve the interests of deterrence. Forfeiture proceedings are civil
proceedings in rem against the seized “articles and this denies the proceed-
ings the character of criminal proceedings”: Wong Hon Sun v HKSAR (2009) 12
HKCFAR 877.
If stolen monies are used to purchase other items, those items represent the for-
feitable monies and are themselves liable to forfeiture: HKSAR v Wong Ka Fai [2015]
6 HKC 407.
(1) Legislation
(a) General
Disposal of property connected with offences

102.—(1) Where— 5–394
(a) any property has come into the possession of a court, the police or the
Customs and Excise Service in connection with any offence;
(b) it appears to a court that an offence has been committed in respect of any
property in the possession of the court, the police or the Customs and Excise
Service; or
(c) it appears to a court that any property in the possession of the court, the po-
lice or the Customs and Excise Service has been used in the commission of
an offence,
then, whether or not the offence was committed or appears to have been committed
in Hong Kong, a court may dispose of such property in the manner provided in this
section.
(2) Of its own motion or upon application, a court may—
(a) in respect of property to which subsection (1)(a) applies—
(i) make an order for the delivery of any such property to the person who
appears to the court to be entitled thereto;
(ii) where the person so entitled is unknown or cannot be found, make
an order that the property be sold or retained in the possession of the
court, the police or the Customs and Excise Service; or
(iii) if the property is of no value, order that the property be destroyed; and
(b) in respect of property to which subsection (1)(b) or (c) applies—
(i) deal with such property under paragraph (a) in the like manner as
property to which subsection (1)(a) applies; or
(ii) make an order for the forfeiture of the property.
(3) Save where the property is perishable, no order for the delivery, sale or forfeiture
of property shall be made under subsection (2) unless the court is satisfied that the prop-
erty will not be required as an exhibit in any proceedings before a court.
577
(4) Where under subsection (2) a court orders the sale or retention of property, and
no person establishes a claim to the property or the proceeds of sale thereof within
6 months from the date such order is made, the property or the proceeds of sale shall
become the property of the Government.
(5) An order made under subsection (2), other than an order for the retention of
property, shall not, except when the property is a live animal, bird or fish or is perish-
able, be carried out until the period allowed for making an appeal against the order has
expired or, where such an appeal is duly made, until the appeal has been finally deter-
mined or abandoned.
(6) Where by any other Ordinance it is provided that any particular property or class
of property shall or may be forfeited, destroyed or disposed of, then the provisions of
such Ordinance shall prevail.
(7) The power conferred on a court by subsection (2)(b)(ii) to order the forfeiture
of property shall not apply in respect of immovable property or any aircraft, motor ve-
hicle or ship.
(8) In this section “court” includes a magistrate.
Seizure of things intended for use in commission of indictable offence
5–395 103.—Any magistrate or the court may order the seizure of any instruments, materials
or things which there is reason to believe are provided or prepared, or being prepared,
with a view to the commission of any indictable offence, and the same may be dealt with
under section 102 as though it were property to which subsection (1)(c) of that section
applies.
Import and Export Ordinance (Cap 60), s 27
Seized articles etc liable to forfeiture
5–396 27.—(1) There shall be liable to forfeiture—
(a) any article which has been seized by a member of the Customs and Excise
Service or an authorised officer in connection with the contravention of any
provision of this Ordinance;
(b) any vessel not exceeding 250 gross tons and any vehicle so seized and which
has been used in connection with, or is the subject of, the contravention of
any provision of this Ordinance,
whether or not any person has been convicted of an offence in respect of such
contravention.
(2) The Commissioner may, within 30 days of the seizure of an article, vessel or ve-
hicle, restore any article (other than an article referred to in Schedule 1) or any vessel
or vehicle which is liable to forfeiture to the person who appears to him to be the owner
thereof or the authorised agent of the owner; and upon such restoration sections 28, 29,
29A, 29B and 30 shall cease to apply to the article, vessel or vehicle.
(3) The Commissioner shall, subject to subsection (3A) and not later than 30 days
beginning on the date of the seizure of an article, vessel or vehicle, serve notice of the
seizure on a person who was to the knowledge of the Commissioner at the time of, or
immediately after, seizure, an owner of the article, vessel or vehicle.
(3A) Subsection (3) shall not apply—
(a) if the article, vessel or vehicle was seized in the presence of—
(i) an owner, or an employee or agent of the owner, of the article, vessel or
vehicle;
(ii) the person whose offence or suspected offence gave rise to the
seizure; or
(iii) in the case of a vessel or vehicle, the master or person in charge; or
(b) in relation to an owner who does not have a permanent address in Hong
Kong at the time of seizure.
(3B) Notwithstanding anything in subsection (3A)(a), where the Commissioner be-
lieves that the article, vessel or vehicle is a stolen article, vessel or vehicle, he shall serve
notice of the seizure within the period specified in subsection (3), on a person whom
he believed at the time of, or immediately after, seizure, to be an owner of the article,
vessel or vehicle.
(4) A notice given under subsection (3) or (3B) shall be deemed to have been duly
served if—
(a) it is delivered to the person on whom it is to be served;
578
(b) it is sent by registered post addressed to such person at the place of residence
or business of such person, if any, known to the Commissioner; or
(c) where it cannot be served in accordance with paragraph (a) or (b), the no-
tice is exhibited at the Customs and Excise Department, in a place to which
the public have access, for a period of not less than 7 days commencing
within 30 days from the date of the seizure of the article, vessel or vehicle.
(5) If an article, vessel or vehicle is liable to forfeiture under subsection (1), the owner
or the authorised agent of the owner of the article, vessel or vehicle or a person who
was in possession of the article, vessel or vehicle at the time of seizure, or a person
who has a legal or equitable interest in the article, vessel or vehicle, may within 30 days
beginning—
(a) on the date of the seizure; or
(b) where notice under subsection (3) or (3B) is—
(i) served by delivery to the person to be served, on the date of service;
(ii) sent by registered post, 2 days after the date of posting; or
(iii) exhibited as described in subsection (4)(c), on the first day it is so
exhibited,
give notice in writing to the Commissioner claiming that the article, vessel or vehicle is
not liable to forfeiture and of his full name and address for service in Hong Kong.
(5A) Where a claimant does not have a permanent address in Hong Kong, the notice
to the Commissioner under subsection (5) shall nominate a solicitor qualified to prac-
tise under the Legal Practitioners Ordinance (Cap 159), by including the name and
address of the solicitor, who is authorised to accept service on his behalf in relation to
any forfeiture proceedings.
(5B) If a notice referred to in subsection (5A) does not include the name and address
of a solicitor as required under that subsection, it shall be regarded as if no notice had
been given.
(5C) Service of process in relation to forfeiture under this Ordinance at an address
given under subsection (5) or on a solicitor nominated under subsection (5A), shall be
good service on the claimant.
(5D) A claimant may withdraw a notice of a claim at any time in writing to the
Commissioner.
(6) If, on the date of expiration of the appropriate period of time specified in sub-
section (5) for the giving of a notice of claim, under that subsection, no such notice has
been given in writing to the Commissioner the article, vessel or vehicle shall be forfeited
forthwith to the Government.
Determination of applications for forfeiture
28.—(1) When a notice of claim is given under section 27(5), the Commissioner or 5–397
an authorised officer shall apply to a magistrate, the District Court or the Court of First
Instance for the forfeiture of the article, vessel or vehicle and shall state in the applica-
tion the name and address of the claimant or in the case of a claimant who does not have
a permanent address in Hong Kong, the name and address of the solicitor authorised to
accept service as specified in the notice of the claim.
(2) When an application under subsection (1) is made to a magistrate, the magistrate
shall issue a summons to the claimant, requiring him to appear before a magistrate upon
the hearing of the application, and shall cause a copy of such summons to be served
upon the Commissioner.
(2AA) When an application under subsection (1) is made to the District Court or the
Court of First Instance, it shall be made and proceeded with in accordance with rules of
court, and may be begun by motion.
(2A) Where the claimant is the defendant in criminal proceedings before a court and
there is no other claimant, on an application made in that behalf by the Commissioner,
the court may hear the forfeiture application immediately following the criminal pro-
ceedings and for the purposes of a hearing under this subsection, any requirement in
respect of the issue or service of a summons or any notice of the hearing under or by
virtue of subsection (2) or (2AA), as the case may be, shall not apply.
(3) If, upon the hearing of an application under subsection (1), the claimant or
some other person who, though not the claimant, was, or would have been, entitled
to make a claim under section 27(5), appears before a court, the court shall hear the
application.
579
(3A) A court may, at the hearing of a forfeiture application, or at an adjourned
hearing, hear a person—
(a) who has not been served with a notice of seizure and was not present when
an article, vessel or vehicle was seized; or
(b) Whose identity was not known to the Commissioner at the time of, or imme-
diately after, seizure; and
(c) who appears to the court to have a right to claim ownership of, or a legal or
equitable interest in, the article, vessel or vehicle, on his claim as to why the
article, vessel or vehicle should not be forfeited.
(4) If, upon the hearing of an application under subsection (1), neither the
claimant nor any other person who, though not the claimant, was, or would have
been, entitled to make a claim under section 27(5), appears before a court and the
court is satisfied—
(a) that the summons or the notice of the hearing (if any) required to be served
under or by virtue of subsection (2) or (2AA), as the case may be, was served;
(b) that a person at the address for service, including a solicitor nominated to
accept service on behalf of a claimant, has refused to accept service of the
summons or the notice of the hearing referred to in paragraph (a); or
(c) that the address for service given to the Commissioner is inadequate to
effect service of the summons or the notice of the hearing referred to in
paragraph (a),
the court shall hear and determine the application without requiring further inquiry as
to the whereabouts of the claimant.
(5) Subject to the provisions of this Ordinance, an application under subsection (1)
to a magistrate shall be deemed to be a complaint for the purposes of section 8 of the
Magistrates Ordinance (Cap 227).
(6) Upon the hearing of an application under subsection (1) a court shall order that
the article, vessel or vehicle, as the case may be, be forfeited to the Government—
(a) in the case where—
(i) the person who appears before the court fails to satisfy the court that
he was, or would have been, entitled to make a claim under section
27(5) in respect of the seized article, vessel or vehicle; and
(ii) no other person appears before the court and satisfies it that he was, or
would have been, entitled to make such claim; and
(iii) the court is satisfied that the article, vessel or vehicle is liable to
forfeiture; or
(b) in the case where the court is satisfied that the article—
(i) is liable to forfeiture; and
(ii) is such an article as is referred to in Schedule 1.
(7) Upon the hearing of the application under subsection (1), in any case other than
a case referred to in subsection (6)(a) or (b) a court may, if it is satisfied—
(a) that a person is, or would have been, entitled to make a claim under section
27(5) in respect of the seized article, vessel or vehicle; and
(b) that the article (not being such an article as is referred to in Schedule
1), vessel or vehicle is liable to forfeiture, order that the article, vessel or
vehicle—
(i) be forfeited to the Government; (ii) be delivered to the claimant sub-
ject to any condition which it may specify in the order; or (iii) be dis-
posed of in such manner and subject to any such condition as it may
specify in the order.
(8) Upon the hearing of the application—
(a) a certified true copy of the record of the proceedings, including the decision
of the court, in any proceedings in respect of the contravention of any provi-
sion of this Ordinance shall be admissible in evidence; and
(b) a certificate issued by a Certifying Authority certifying the gross tonnage of
any vessel shall, upon production of the certificate and without proof of the
signature thereon, be admissible as prima facie evidence of the facts stated
therein.
(9) In subsection (8), “Certifying Authority” – means the Director of Marine or
any person authorised by him as a certifying authority under the Merchant Shipping
(Registration) (Tonnage) Regulations (Cap 415 sub leg).
580
(10) If, after a court has ordered that an article, vessel or vehicle be delivered to a
person, that person cannot be found or refuses to accept the article, vessel or vehicle,
the Commissioner may apply to a court which may—
(a) order that the article, vessel or vehicle be forfeited; or
(b) make any other order as it considers fit in the circumstances.

Power to release seized vessels and vehicles prior to the hearing
29.—(1) Where an application has been made under section 28(1) in respect of a 5–398
vessel or vehicle which is liable to forfeiture, a court may, upon payment into court by
way of security of a sum of money not less in amount than the value of the seized vessel
or vehicle, as assessed by the Commissioner or an authorised officer, order that the vessel
or vehicle be delivered to the claimant thereof upon the condition that the vessel or ve-
hicle be re-delivered into the custody of the Commissioner before the date of hearing
of the application.
(2) If—
(a) a court has ordered under subsection (1) that a seized vessel or vehicle be
delivered to the claimant thereof; and
(b) the vessel or vehicle is not delivered into the custody of the Commissioner
before the date of the hearing of the application,
the court hearing the application may, in lieu of ordering under section 28(6) or (7)
that the vessel or vehicle be forfeited to the Government, order that the money paid into
court under subsection (1) of this section be forfeited to the Government or returned to
the person who paid it into court.
(3) A claimant who applies for the release of a vessel or vehicle shall prior to the re-
lease of the vessel or vehicle pay to the Commissioner the reasonable cost of assessing
the value of the vessel or vehicle as the court orders.
Import and Export Ordinance (Cap 60), s 29A
Power to dispose, etc. of perishables, etc.
29A.—(1) If an article liable to forfeiture under section 27(1) is, in the opinion of 5–399
the Commissioner, of a perishable nature or of such a nature that it is difficult to store
or is likely to deteriorate before the conclusion of any proceedings relating to it, the
Commissioner may—
(a) release the article to the owner or a person entitled to make a claim upon
payment by way of security to the Commissioner of an amount of money of
not less than the value of the seized article as assessed by the Commissioner
or an authorised officer;
(b) for a perishable article, order that the article—
(i) be sold and the proceeds of the sale be retained by the Commissioner;
or
(ii) be destroyed; or
(c) for an article that is difficult to store or an article that is likely to deteriorate
before the conclusion of any proceedings relating to it, apply to a magistrate,
the District Court or the Court of First Instance for an order that the article
be sold and the proceeds of the sale be retained by the Commissioner.
(2) The court to which an application has been made under subsection (1)(c) shall
not make an order under that subsection unless it is satisfied, in the case where the
application is made—
(a) before the expiry of the period for making a claim under section 27(5), the
persons referred to in section 27(3), (3A) and (3B); or
(b) after the expiry of the period referred to in paragraph (a), the persons who
have given notice to the Commissioner,
have been given notice of the application for an order to sell the article.
(3) Where an application is made under section 28(1) with respect to an article which
is liable to forfeiture under section 27(1), the court may, in lieu of ordering under
section 28(6) or (7) that article be forfeited to the Government or be delivered to the
claimant, order that the money paid to the Commissioner as security under subsection
(1)(a) or retained by the Commissioner under subsection (1)(b) or (c), be forfeited to
the Government or paid to the person giving the security or the claimant.
581
Import and Export Ordinance (Cap 60), s 29B
Stay of order on appeal
5–400 29B.—(1) Subject to subsection (2), an order by a court for the delivery of an article,
vessel or vehicle to a claimant shall be stayed if the Commissioner or the Secretary for
Justice lodges an appeal against the order to deliver the article, vessel or vehicle or an
application by way of case stated in relation to the order of the court until those proceed-
ings are dealt with by the higher court.
(2) The Commissioner may, notwithstanding subsection (1), consent to the delivery
of the article, vessel or vehicle.

Claims for the return of forfeited articles, etc.
5–401 30.—(1) A claimant may, within 6 weeks after—
(a) the article, vessel or vehicle has been forfeited to the Government under
section 27(6) or has been forfeited to the Government by order of a court
under section 28(6) or (7); or
(b) the determination of any appeal against an order for forfeiture of the article,
vessel or vehicle made by a court under section 28(6) or (7),
give notice in writing to the Commissioner of his intention to submit to the Chief
Executive a petition in respect of the forfeited article, vessel or vehicle.
(2) Where a claimant has submitted a petition to the Chief Executive by lodging it
in triplicate with the Chief Secretary for Administration within 30 days of giving notice
under subsection (1), the Chief Executive may after considering the petition—
(a) order the return of the forfeited article, vessel or vehicle to the claimant;
(b) stipulate conditions upon which the delivery and transfer of ownership of
the forfeited or disposed of article, vessel or vehicle, or the proceeds of any
disposal, to the claimant is to be effected; or
(c) reject the petition.
Forfeiture
5–402 26.—If in any proceedings under this Ordinance or otherwise on application by or
on behalf of the Commissioner of Police, a court is satisfied that any money, gambling
equipment or other property, not being immovable property, has been used in or for or
in connection with or is or represents the proceeds of or is derived from unlawful gam-
bling or an unlawful lottery, the court shall order that it be forfeited to the Government,
whether or not any person has been convicted of an offence under this Ordinance.
Dangerous Drugs Ordinance (Cap 134), s 56
Forfeiture
5–403 56.—(1) A court may (whether or not any person has been convicted of such offence)
order to be forfeited to the Government—
(a) any money or thing (other than premises, a ship exceeding 250 gross tons,
an aircraft or a train) which has been used in the commission of or in
connection with;
(b) any money or other property received or possessed by any person as the re-
sult or product of,
an offence under this Ordinance or a drug trafficking offence within the meaning
of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405). (Amended 89 of
1995 s 36)
(2) An order under subsection (1) for the forfeiture of a thing may include a term
permitting a specified person or persons to redeem such thing on such conditions,
including conditions as to the payment of the value or a proportion of the value thereof
to the Government, as the court may think fit.
(3) The court may require that notice of an application for forfeiture under subsec-
tion (1) shall be given in such manner as it thinks fit.
(4) The Chief Executive in Council may, in his absolute discretion and after any pro-
ceedings under this Ordinance are concluded, entertain and give effect to any moral
claim to or in respect of any money, thing or other property which has been forfeited
to the Government.
582
Dutiable Commodities Ordinance (Cap 109), s 48
Forfeiture
48.—(1) Wherever there occurs a contravention or an attempted contravention of 5–404
any provision of this Ordinance in respect of any goods, such goods shall be liable to
forfeiture whether or not any person is convicted of any offence.
(2) Wherever there occurs a contravention or an attempted contravention of any
provision of this Ordinance, any things which are mentioned in section 15(1)(a), (b),
(c) and (d) and which are made use of in such contravention or attempted contraven-
tion shall be liable to forfeiture whether or not any person is convicted of any offence.
(2A) The Commissioner may, on payment of any duty payable on the goods and on
complying with any conditions imposed under directions given by the Commissioner
under this Ordinance, within 30 days of the seizure of the goods or things liable to for-
feiture restore any goods or things liable to forfeiture to the person who appears to him
to be the owner or the authorised agent of the owner and, on restoration, this section
and sections 48A, 48B, 48C, 52 and 52A shall cease to apply to the goods and things.
(3) The Commissioner shall, subject to subsection (3A) and not later than 30 days
beginning on the date of seizure of goods or things liable to forfeiture, serve notice of
the seizure on a person who was to the knowledge of the Commissioner at the time of, or
immediately after, seizure, an owner of the goods or things liable to forfeiture.
(3A) Subsection (3) shall not apply—
(a) if the goods or things liable to forfeiture were seized in the presence of—
(i) an owner, or an employee or agent of the owner, of the goods or things;
(ii) the person whose offence or suspected offence gave rise to the
seizure; or
(iii) in the case of a ship, vehicle or aircraft, the master or person in
charge; or
(b) in relation to an owner who does not have a permanent address in Hong
Kong at the time of seizure.
(3B) Notwithstanding anything in subsection (3A)(a), where the Commissioner be-
lieves that the goods or things liable to forfeiture are stolen, he shall serve notice of the
seizure within the period specified in subsection (3), on a person whom he believed at
the time of, or immediately after, seizure, to be an owner of the goods or things.
(4) Notice under subsection (3) or (3B) shall be given in writing and shall be deemed
to have been duly served on the person concerned—
(a) if delivered to him personally; or
(b) if sent by registered post addressed to him at his usual or last known place of
abode or business.
(5) Where a notice under subsection (3) or (3B) cannot be given, then a notice of the
seizure together with the date and place thereof shall be exhibited in a place available to
the public at the Customs and Excise Department for a period of 7 days, such period to
commence within 30 days after the seizure.
(6) If goods or things are liable to forfeiture under this section, a claimant may, within
30 days beginning—
(a) on the date of the seizure; or
(b) where notice under subsection (3) or (3B) is—
(i) served by delivery to the person to be served, on the date of service;
(iii) exhibited as described in subsection (5), on the first day it is so
exhibited,
give notice in writing to the Commissioner claiming that the goods or things are not li-
able to forfeiture and of his full name and address for service in Hong Kong.
(6A) Where a claimant does not have a permanent address in Hong Kong, the notice
to the Commissioner under subsection (6) shall nominate a solicitor qualified to prac-
tise under the Legal Practitioners Ordinance (Cap 159), by including the name and
address of the solicitor, who is authorised to accept service on his behalf in relation to
any forfeiture proceedings.
(6B) If a notice referred to in subsection (6A) does not include the name and address
of a solicitor as required under that subsection, it shall be regarded as if no notice had
been given.
(6C) Service of notice, a summons issued by a magistrate or other process in relation
to forfeiture under this Ordinance at an address given under subsection (6) or on a so-
licitor nominated under subsection (6A), shall be good service on the claimant.
583
(6D) A claimant may withdraw a notice of claim at any time by writing to the Commissioner.
(7) If on the expiration of the relevant period aforesaid for the giving of notice of
claim in respect of any goods or things liable to forfeiture no such notice has been
given to the Commissioner, the goods or things liable to forfeiture in question shall be
deemed to have been duly condemned as forfeited.
(8)–(12) (Repealed 70 of 1993 section 4).
Dutiable Commodities Ordinance (Cap 109), s 48A

Procedure for forfeiture
5–405 48A.—(1) When a claimant gives notice under section 48(6), the Commissioner shall
apply to a magistrate for the forfeiture of the goods or things liable to forfeiture and
shall state in the application the name and address of the claimant or in the case of a
claimant who does not have a permanent address in Hong Kong, the name and address
of the solicitor authorised to accept service.
(2) When an application is made to a magistrate, the magistrate shall issue a summons
to the claimant, requiring him to appear before a magistrate upon the hearing of the
application, and shall cause a copy of the summons to be served on the Commissioner.
(3) Where a claimant is the defendant in criminal proceedings before a magistrate and
there is no other claimant, on an application made in that behalf by the Commissioner,
the magistrate may hear the forfeiture application immediately following the hearing of
criminal proceedings and subsection (2) shall not apply.
(4) A magistrate may, at the time and place of hearing for forfeiture application, or at
an adjourned hearing, hear a person—
(a) who has not been served with a notice of seizure and was not present when
goods or things liable to forfeiture were seized; or
(b) whose identity was not known to the Commissioner at the time of, or imme-
diately after, seizure; and
(c) who appears to the magistrate to have a right to claim ownership of, or a
legal or equitable interest in, the goods or things liable to forfeiture,
on his claim as to why the goods or things liable to forfeiture should not be forfeited.
(5) If, at the time and place appointed in a summons, neither the claimant nor an-
other person who may have been entitled to make a claim appears and the magistrate
is satisfied—
(a) that the summons was served;
(b) that a person at the address for service, including a solicitor nominated to
accept service on behalf of a claimant, has refused to accept the service of
summons; or
(c) that the address for service given to the Commissioner is inadequate to effect
service of the summons,
the magistrate shall hear the application without further inquiry as to the whereabouts
of the claimant.
(6) Upon the hearing of an application under this section a magistrate shall order
that the goods or things, as the case may be, be forfeited to the Government where—
(a) the person who appears in answer to the summons fails to satisfy the magis-
trate that he was, or would have been, entitled to make a claim under section
48(6) in respect of the seized goods or things; and
(b) no other person appears before the magistrate and satisfies him that he was,
or would have been, entitled to make a claim; and
(c) the magistrate is satisfied that the goods or things are liable to forfeiture.
(7) Upon the hearing of an application under this section, in any case other than a
case referred to in subsection (6), a magistrate may if he is satisfied that the goods or
things are liable to forfeiture and that a person is, or would have been, entitled to make
a claim under section 48(6) in respect of the seized goods or things order that the goods
or things—
(a) be forfeited to the Government;
(b) be delivered to the claimant subject to any condition which he may specify in
the order, including a condition—
(i) that the duty payable under this Ordinance be paid; and
(ii) that the claimant discharge the obligations imposed on him under this
Ordinance; or
(c) be disposed of in the manner and subject to the conditions as he may specify
in the order.
584
(8) If, after a magistrate has ordered that goods or things liable to forfeiture be de-
livered to a person, that person cannot be found or refuses to accept the goods or things,
the Commissioner may apply to a magistrate who may—
(a) order that the goods or things liable to forfeiture be forfeited; or
(b) make any other order as he considers fit in the circumstances.
(9) On the hearing of an application—
(a) a certified copy of the record of proceedings, including the decision of the
court or magistrate, in proceedings for the contravention of this Ordinance
is admissible in evidence; and
(b) a certificate issued by the Director of Marine or a person authorised by
him as a Certifying Authority under the Merchant Shipping (Registration)
(Tonnage) Regulations (Cap 415 sub leg) certifying the gross tonnage of a
ship, shall without proof of the signature, be admissible as evidence of the
facts stated in the certificate.
Dutiable Commodities Ordinance (Cap 109), s 48B

Power to release seized ships, vehicles and aircraft prior to hearing
48B.—(1) Where an application for forfeiture has been made under section 48A in 5–406
respect of a ship, vehicle or aircraft which is liable to forfeiture, a magistrate may, on pay-
ment into court by way of security of a sum of money not less in amount than the value
of the seized ship, vehicle or aircraft, as assessed by the Commissioner, order that the
ship, vehicle or aircraft be delivered to the claimant on condition that the ship, vehicle
or aircraft be redelivered into the custody of the Commissioner before the date of the
hearing of the application.
(2) A claimant who applies for the release of a ship, vehicle or aircraft shall, prior to
the release of the ship, vehicle or aircraft, pay the reasonable cost of assessing the value
of the ship, vehicle or aircraft as the magistrate orders.
(3) If—
(a) a magistrate has ordered under subsection (1) that a seized ship, vehicle or
aircraft be delivered to the claimant; and
(b) the ship, vehicle or aircraft is not redelivered into the custody of the
Commissioner before the date of the hearing,
the magistrate hearing the application may, in lieu of ordering under section 48A(6)
or (7) that the ship, vehicle or aircraft be forfeited to the Government, order that the
money paid into court under subsection (1) be forfeited to the Government or returned
to the person who paid it into court or the claimant.
Dutiable Commodities Ordinance (Cap 109), s 48C
Claims for return of forfeited goods, etc.
48C.—(1) A claimant may within 6 weeks after— 5–407
(a) goods or things have been forfeited to the Government under section 48(7)
or 48A(6) or (7); or
(b) the determination of an appeal against an order for forfeiture of goods or
things made by a magistrate under section 48A(6) or (7),
give notice in writing to the Commissioner of his intention to submit to the Chief
Executive a petition in respect of the forfeited goods or things.
(2) Where a claimant has submitted a petition to the Chief Executive by lodging it in
triplicate with the Chief Secretary for Administration within 1 month of giving notice
under subsection (1), the Chief Executive may after considering the petition—
(a) order the return of the forfeited goods or things to the claimant;
(b) stipulate conditions upon which the delivery and transfer of ownership of
the for-feited or disposed of goods or things, or the proceeds of any disposal,
to the claimant is to be effected; or
(c) reject the petition.

Evidence of forfeiture
49.—Forfeiture by order of a magistrate under this Ordinance may be proved in any 5–408
court, or before any competent tribunal, by the production of a certificate of such for-
feiture purporting to be signed by the magistrate or by an examined copy of the record
of such forfeiture certified by the magistrate’s clerk.
585
Protection of members of Customs and Excise Service in forfeiture proceedings
5–409 50.—(1) Where in any proceedings which may involve the condemnation of anything
seized as liable to forfeiture judgment is given for the claimant the magistrate may certify
that there were reasonable grounds for the seizure.
(2) Where any proceedings, civil or criminal, are brought against the Commissioner,
any member of the Customs and Excise Service or other public officer in respect of
anything seized or forfeited which has subsequently been restored to any person under
the provisions of this Ordinance, then if the court is satisfied that there were reasonable
grounds for the seizure and for the restoration of such thing, the plaintiff or the pros-
ecutor shall not be entitled to recover any damages or costs and the defendant shall not
be liable to any punishment.

Goods abandoned as not worth the duty
5–410 51.—(1) Dutiable goods abandoned by the importer or proprietor as not worth
the duty may be destroyed or disposed of within such time and in such manner as the
Commissioner may direct.
(2) Dutiable goods unclaimed by the importer or proprietor after a period of 7 days
from the time of notice being given by the Commissioner that the goods had been re-
ceived into his custody shall be deemed to have been abandoned as not worth the duty
and may be disposed of in the manner prescribed in subsection (1).
Power to dispose, etc of perishables, etc
5–411 52.—(1) If goods or things liable to forfeiture under section 48(1) or (2) are, in the
opinion of the Commissioner, of a perishable nature or of such a nature that they are
difficult to store or are likely to deteriorate before the conclusion of any proceedings
relating to them, the Commissioner may—
(a) release the goods or things to the owner or a person entitled to make a
claim upon payment by way of security to the Commissioner of an amount of
money of not less than the value of the seized goods or things as assessed by
the Commissioner;
(b) for perishable goods or things, order that the goods or things—
(i) be sold and the proceeds of the sale be retained by the Commissioner;
or
(ii) be destroyed; or
(c) for goods or things that are difficult to store or are likely to deteriorate be-
fore the conclusion of any proceedings relating to them, apply to a magis-
trate for an order that the goods or things be sold and the proceeds of the
sale be retained by the Commissioner.
(2) A magistrate shall not make an order under subsection (1)(c) unless he is satis-
fied, in the case where the application is made—
(a) before the expiry of the period for making a claim under section 48(6), the
persons referred to in section 48(3), (3A) and (3B); or
(b) after the expiry of the period referred to in paragraph (a), the persons who
have given notice to the Commissioner,
have been given notice of the application for an order to sell the goods or things.
(3) Where an application is made under section 48A with respect to goods or
things which are liable to forfeiture under section 48(1) or (2), the magistrate may,
in lieu of ordering under section 48A(6) or (7) that the goods or things be forfeited
to the Government or be delivered to the claimant, order that the money paid to the
Commissioner as security under subsection (1)(a) or retained by the Commissioner
under subsection (1)(b) or (c) be forfeited to the Government or paid to the person
giving the security or the claimant.
Dutiable Commodities Ordinance (Cap 109), s 52A
Stay of order on appeal
5–412 52.—(1) Subject to subsection (2), an order by a magistrate for the delivery of goods
or things to a claimant shall be stayed if the Commissioner or the Secretary for Justice
lodges an appeal against the order to deliver the goods or things or an application by
586
way of case stated against the order to deliver the goods or things until those proceed-
ings are dealt with by the higher court.
(2) The Commissioner may, notwithstanding subsection (1), consent to the delivery
of the goods or things.
(b) Forfeiture of obscene articles

Control of Obscene and Indecent Articles Ordinance (Cap 390), s 39
Liability to forfeiture
39.—(1) Any article which is— 5–413
(a) obscene; or
(b) classified, other than by virtue only of an interim classification, as a Class III
article,
shall be liable to forfeiture.
(2) Subject to subsection (3), any—
(a) machinery or apparatus used for projecting or showing; or
(b) machinery, plate, implement, utensil, photographic film or material used for
the purpose of printing copies of,
any article mentioned in subsection (1) shall be liable to forfeiture.
(2A) Any article seized, removed or detained under section 34, 36A or 36B shall be
liable to forfeiture.
(3) Where an article submitted under section 13(1) is classified as a Class III article,
nothing mentioned in subsection (2)(b) shall be liable to forfeiture under this section
by reason only that it was used to print, manufacture or reproduce that article or copies
of that article for the purpose of that submission.
Order for forfeiture
40.—(1) Subject to subsection (2) and section 41, where an application is made to a 5–414
magistrate for an order for forfeiture—
(a) he shall, in the case of an article that is before him and is liable to forfeiture
under section 39(1), order it to be forfeited;
(b) he may, in the case of a thing that is before him and is liable to forfeiture
under section 39(2), order it to be forfeited;
(c) he may, in the case of an article that is before him and is liable to forfeiture
under section 39(2A), order it to be forfeited.
(2) An order for forfeiture shall not be made under subsection (1) if any ground
of defence under section 21(2)(b), (c), (d) or (e), 22(2), 23(2), 24(3) or 27A(2), or
section 28 in respect of the publication of an article, as the case may be, is proved.
(3) An order for forfeiture of an article or thing may be made under subsection (1)
not-withstanding that no person is convicted of any offence in connection with that art-
icle or thing.
(4) Any article or thing which is ordered to be forfeited under subsection (1) shall be
disposed of in such manner as the magistrate shall direct.
Procedure in relation to forfeiture
41.—(1) Subject to subsections (3) and (4), before making an order for forfeiture of 5–415
any article or thing under section 40 the magistrate shall issue a summons to—
(a) the occupier of any premises or, in the case of a stall, the owner of the stall,
in or from which the article or thing was seized;
(b) the owner of any vessel, aircraft or vehicle in or from which the article or
thing was seized;
(c) the owner of the article or thing seized,
to appear on a day specified in the summons to show cause why the article or thing
should not be forfeited.
(2) In addition to any person mentioned in subsection (1), any other person being
the author or manufacturer of any article seized or a person into whose hands any such
article may have passed before seizure, or a person who has an interest in any article or
thing seized, may appear before the magistrate on the day specified in the summons to
show cause why the article or thing should not be forfeited.
587
(3) If the magistrate is satisfied that any person specified in subsection (1) cannot
for any reason be found or ascertained, he may dispense with the issue of a summons
to that person.
(4) If any summons issued under subsection (1) has not for any reason been served
and the magistrate is satisfied that all reasonable efforts were made to serve the sum-
mons on the person named in the summons he may make an order of forfeiture under
section 40 notwithstanding that the summons was not served and that the person named
in the summons is not given an opportunity to show cause why the article or thing
should not be forfeited.
(5) An order for forfeiture of any article shall, unless the magistrate considers that
there are special reasons for directing otherwise, apply to the whole of the article.
(6) In this section “owner”—
(a) in the case of a stall includes any occupier of that stall;
(b) in the case of a vessel includes any charterer and the master of that vessel;
(c) in the case of an aircraft includes any operator of that aircraft; and
(d) in the case of a vehicle includes the driver of that vehicle.
(c) Forfeiture for forgery

Crimes Ordinance (Cap 200), s 78
Powers of search, forfeiture, etc

5–416 78.—(1) If it appears to a magistrate, from information given him on oath, that there
is reasonable cause to believe that a person has in his custody or under his control—
(a) any thing which he or another has used after the commencement of the
Crimes (Amendment) Ordinance 1992 (49 of 1992) for the making of any
false instrument or copy of a false instrument, in contravention of section
71 or 72;
(b) any false instrument or copy of a false instrument which he or another has
used after the commencement of the Crimes (Amendment) Ordinance
1992 (49 of 1992) or intends to use, in contravention of section 73 or 74; or
(c) any thing which under section 75 or 76 it is an offence for that person to have
in his custody or under his control without lawful authority or excuse,
the magistrate may issue a warrant authorising a police officer, customs officer or immi-
gration officer to search for and seize that thing, instrument or copy, and for that pur-
pose to enter any premises specified in the warrant.
(2) A police officer, customs officer or immigration officer, at any time after seizing
an object suspected of being a thing, instrument or copy to which subsection (1) applies
(whether or not the seizure was effected by virtue of a warrant under that subsection)
may apply to a magistrate for an order under this subsection with respect to that object,
and the magistrate, if satisfied that—
(a) the object is a thing, instrument or copy to which subsection (1) applies;
and
(b) it is in the public interest to do so,
may, subject to subsection (4), make such order as he thinks fit for the forfeiture of the
object and its subsequent destruction or disposal.
(3) Subject to subsection (4), the court by or before which a person is convicted of
an offence under this Part may order any object which it is satisfied relates to the com-
mission of the offence to be forfeited and either destroyed or dealt with in such other
manner as the court may direct.
(4) If any person claiming to be the owner of or otherwise interested in any object
liable to be forfeited under subsection (2) or (3) applies to be heard by a court or magis-
trate, as the case may be, the court or magistrate shall not order the object to be forfeited
unless an opportunity has been given to that person to show cause why the order should
not be made.
Crimes Ordinance Cap (200), s 71
The offence of forgery
5–417 71.—A person who makes a false instrument, with the intention that he or another
shall use it to induce somebody to accept it as genuine, and by reason of so accepting
it to do or not to do some act to his own or any other person’s prejudice, commits
the offence of forgery and is liable on conviction on indictment to imprisonment for
14 years.
588
The offence of copying a false instrument
72.—A person who makes a copy of an instrument which is, and which he knows or 5–418
believes to be, a false instrument, with the intention that he or another shall use it to
induce somebody to accept it as a copy of a genuine instrument, and by reason of so
accepting it to do or not to do some act to his own or any other person’s prejudice, com-
mits an offence and is liable on conviction on indictment to imprisonment for 14 years.

The offence of using a false instrument
73.—A person who uses an instrument which is, and which he knows or believes to 5–419
be, false, with the intention of inducing somebody to accept it as genuine, and by reason
of so accepting it to do or not to do some act to his own or any other person’s preju-
dice, commits an offence and is liable on conviction on indictment to imprisonment for
14 years.
The offence of using a copy of a false instrument
A person who uses a copy of an instrument which is, and which he knows or believes 5–420
to be, a false instrument, with the intention of inducing somebody to accept it as a copy
of a genuine instrument, and by reason of so accepting it to do or not to do some act to
his own or any other person’s prejudice, commits an offence and is liable on conviction
on indictment to imprisonment for 14 years.
Offences of possessing a false instrument
75.—(1) A person who has in his custody or under his control an instrument which is, 5–421
and which he knows or believes to be, false, with the intention that he or another shall
use it to induce somebody to accept it as genuine, and by reason of so accepting it to do
or not to do some act to his own or any other person’s prejudice, commits an offence
and is liable on conviction on indictment to imprisonment for 14 years.
(2) A person who, without lawful authority or excuse, has in his custody or under his
control an instrument which is, and which he knows or believes to be, false, commits an
offence and is liable on conviction on indictment to imprisonment for 3 years.
The offence of making or possessing equipment for making a false instrument
76.—(1) A person who makes or has in his custody or under his control a machine 5–422
or implement, or any paper or other material, which to his knowledge is or has been
specially designed or adapted for the making of any instrument, with the intention that
he or another shall make a false instrument and that he or another shall use that false in-
strument to induce somebody to accept it as genuine, and by reason of so accepting it to
do or not to do some act to his own or any other person’s prejudice, commits an offence
and is liable on conviction on indictment to imprisonment for 14 years.
(2) A person who, without lawful authority or excuse, makes or has in his custody or
under his control a machine or implement, or any paper or other material, which to
his knowledge is or has been specially designed or adapted for the making of any false
instrument, commits an offence and is liable on conviction on indictment to imprison-
ment for 3 years.
Criminal possession
77.—Where under this Part it is an offence for any person to have in his custody or 5–423
under his control any instrument or thing, a person shall be deemed to have such instru-
ment or thing in his custody or under his control, notwithstanding that it is not in his
personal custody or possession, if he knowingly and wilfully has it in the actual custody or
possession of some other person, or in any building, lodging, apartment, field or other
place, whether open or enclosed, whether occupied by himself or not, and whether the
instrument or thing is in such custody, possession or place for the use of such person or
for the use or benefit of another person.
589
(d) Forfeiture for counterfeiting
Crimes Ordinance (Cap 200) Part XI
Powers of search, forfeiture, etc

5–424 106.—(1) If it appears to a magistrate, from information given him on oath, that there
is reasonable cause to believe that a person has in his custody or under his control any
thing which—
(a) is a counterfeit of a currency note or protected coin;
(b) is a reproduction made in contravention of section 103 or 104; or
(c) he or another has used after the commencement of the Crimes (Amendment)
Ordinance 1992 (49 of 1992) or intends to use, for the making of any such
counterfeit or of any such reproduction,
the magistrate may issue a warrant authorising a police officer, customs officer or im-
migration officer to search for and seize that thing, and for that purpose to enter any
premises specified in the warrant.
(2) A police officer, customs officer or immigration officer, at any time after seizing
an object suspected of being a thing to which subsection (1) applies (whether or not the
seizure was effected by virtue of a warrant under that subsection) may apply to a magis-
trate for an order under this subsection with respect to that object and the magistrate,
if satisfied that—
(a) the object is a thing to which subsection (1) applies; and
(b) it is in the public interest to do so,
may, subject to subsection (4), make such order as he thinks fit for the forfeiture of the
thing and its subsequent destruction or disposal.
(3) Subject to subsection (4), the court by or before which a person is convicted of
an offence under this Part may order any object which it is satisfied relates to the com-
mission of the offence to be forfeited and either destroyed or dealt with in such other
manner as the court may direct.
(4) If any person claiming to be the owner of or otherwise interested in any object
liable to be forfeited under subsection (2) or (3) applies to be heard by a court or magis-
trate, as the case may be, the court or magistrate shall not order the object to be forfeited
unless an opportunity has been given to that person to show cause why the order should
not be made.
Crimes Ordinance (Cap 200) s 103
The offence of reproducing Hong Kong currency notes
5–425 103.—(1) A person who, without the consent in writing of the Monetary Authority,
reproduces on any substance whatsoever, and whether or not to the correct scale, any
Hong Kong currency note or any part of a Hong Kong currency note, commits an of-
fence and is liable on summary conviction to imprisonment for 6 months and a fine of
$20,000.
(2) In this section, “Hong Kong currency note” – means a currency note of the kind
described in paragraph (a) of the definition of “currency note” in section 6.
Crimes Ordinance (Cap 200) s 104
Offences of making, etc. imitation Hong Kong coins
5–426 104.—(1) A person who, in connection with a scheme intended to promote the sale
of any product or with the making of contracts for the supply of any service, and without
the previous consent in writing of the Monetary Authority to the sale or distribution of
imitation Hong Kong coins in connection with that scheme—
(a) makes an imitation Hong Kong coin;
(b) sells or distributes any imitation Hong Kong coin; or
(c) has in his custody or under his control any imitation Hong Kong coin with a
view to selling or distributing it,
commits an offence and is liable on summary conviction to imprisonment for 6 months
and a fine of $20,000.
“Hong Kong coin” means any coin which is legal tender in Hong Kong;
“imitation Hong Kong coin” means anything which resembles a Hong Kong coin
in shape, size and the substance of which it is made.
590
(e) Forfeiture under the Societies Ordinance
Societies Ordinance (Cap 151), s 36
Forfeiture
36.—Any books, accounts, writings, banners, insignia or other movable property be- 5–427
longing to any unlawful society shall upon order of a magistrate be forfeited and given
to the Societies Officer for disposal in such manner as he may see fit.
(f) Forfeiture for certain sexual offences

Seizure and forfeiture in respect of vice establishments

153.—(1) Without prejudice to section 152, if a police officer reasonably suspects 5–428
that any premises, vessel or place is being kept as a vice establishment, he may seize and
detain anything found in such premises, vessel or place, or on any person found in such
premises, vessel or place, which appears to him to have been used in or for or in connec-
tion with the commission of an offence under section 139.
(2) If, in any proceedings for an offence under section 139, 143 or 144 or otherwise on
application by or on behalf of the Commissioner of Police, a court or magistrate is satisfied
that anything in the possession of the court or magistrate or the police, not being immov-
able property, has been used in or for or in connection with the commission of an offence
under section 139, the court or magistrate may order that it be forfeited to the Government,
whether or not any person has been convicted of an offence under section 139.
Note: Sections 139, 143 and 144 of the Crimes Ordinance (Cap 200) are concerned,
respectively, with the offences of keeping a vice establishment, a tenant, etc., permit-
ting premises or a vessel to be kept as a vice establishment, and a tenant, etc., permit-
ting premises or a vessel to be used for prostitution; these offences are set out in full
in Chapter 21.
Crimes Ordinance (Cap 200), s 153D
Forfeiture of vessels in respect of which certain offences committed
153D.—(1) Where— 5–429
(a) a person is convicted by a court or magistrate of an offence under section 139,
144 or 145 of this Ordinance, in relation to a vessel or part of a vessel; and
(b) the court or magistrate is satisfied—
(i) that the offence was committed within a period beginning 4 months
after and ending 16 months after a conviction of that or any other
person for an offence under any of the provisions referred to in para-
graph (a) in relation to that vessel or any part of that vessel; and
(ii) that within 2 weeks after the date of the conviction referred to in sub-
paragraph (i), a notice complying with subsection (3) was—
(A) served on the owner of the vessel; and
(B) published in the Gazette and in one newspaper published in
Hong Kong in the English language and one newspaper so pub-
lished in the Chinese language,
this section applies to that vessel.
(2) Where this section applies to any vessel the court or magistrate shall—
(a) on an application by the Commissioner of Police, declare that the vessel is
liable to forfeiture;
(b) as soon as reasonably practicable, send a notice in writing to the Director of
Marine identifying the vessel and stating that it has been declared under this
section to be liable to forfeiture;
(c) have the same power to sentence or otherwise deal with the convicted person
as if the vessel were not so liable; and
(d) leave the liability to forfeiture out of account in determining the appropriate
sentence or other manner of dealing with the convicted person.
(3) A notice complying with this section shall—
(a) be addressed to the owner of the vessel (it being unnecessary to name the
owner);
591
(b) state that a person has been convicted of an offence in relation to the vessel
and state the nature, date, and the name and address of the person con-
victed, of the offence;
(c) state that if, within a period beginning 4 months after the date of that convic-
tion and ending 16 months after that date, any person commits an offence
under section 139, 144 or 145 of this Ordinance, in relation to the vessel, and
is convicted of that offence, the vessel will be liable to forfeiture; and
(d) set out the sections referred to in paragraph (c).
(4) For the purposes of subsection (1)(b)(ii) and section 153E, a notice is duly served
on the owner of a vessel if—
(a) it is delivered to him, or to the person whom the Commissioner believes to
be the owner;
(c) where in the opinion of the Commissioner it is not practicable to serve the
notice in accordance with paragraph (a) or (b) the notice is exhibited in the
Marine Department in a place to which the public have access for a period of
not less than 7 days.
Note: Sections 139, 144 and 145 of the Crimes Ordinance (Cap 200) are concerned,
respectively, with the offences of keeping a vice establishment, a tenant, etc., permitting
premises or a vessel to be kept as a vice establishment, and a tenant, etc., permitting prem-
ises or a vessel to be used for prostitution; these offences are set out in full in Chapter 21.
Crimes Ordinance (Cap 200), s 153E
Procedure in respect of forfeiture of vessels
5–430 153E.—(1) Where a court or magistrate declares that a vessel is liable to forfeiture
under section 153D(2), the Commissioner may seize and detain the vessel or (if the
vessel is already in his custody) continue to detain the vessel, and if he does so he shall,
within 2 weeks of the seizure or declaration (whichever is the later), serve notice of the
declaration on the owner of the vessel.
(2) Within 7 days after the service of a notice under subsection (1), notice of the
declaration shall be published—
(a) in the Gazette; and
(b) in one newspaper published in Hong Kong in the English language and one
news-paper so published in the Chinese language.
(3) Where a notice has been served under subsection (1), any person who has a claim
(in this section and section 153F referred to as the claimant) may within 30 days after—
(a) the date of the notice, if it was served in accordance with section 153D(4)(a)
or (b); or
(b) the first day on which the notice was exhibited, if it was served in accordance
with section 153D(4)(c),
give notice in writing to the Commissioner that he claims that the vessel should not be
forfeited.
(4) A notice under subsection (3) shall state an address within Hong Kong at which
the claimant may be served in any proceedings relating to the forfeiture of the vessel
and in any such proceedings a document addressed to the claimant and sent by post to,
or delivered at, that address shall for the purposes of this section and section 153F be
deemed to be duly served on the claimant.
(5) The Commissioner may, at any time before the end of the appropriate period
of time specified in subsection (3) for the giving of a notice of claim, terminate the
seizure of the vessel by serving notice to that effect on the owner in accordance with
section 153D(4), or in a similar manner on the person in possession of the vessel at
the time it was seized; and within 14 days of so terminating the seizure of the vessel, the
Commissioner shall release the vessel to the owner or to such person and publish notice
of the termination of the seizure in the manner provided in subsection (2).
(6) If, at the end of the appropriate period of time specified in subsection (3) for the
giving of a notice of claim, no such notice has been given in writing to the Commissioner,
the vessel shall be forfeited.
(7) A person has a claim for the purposes of this section and section 153F if—
(a) he is the owner of the vessel, or has an interest in the vessel, or is the agent
of the owner; or
(b) he was in possession of the vessel at the time it was seized.
592
Crimes Ordinance (Cap 200), s 153F
Determination of application for forfeiture
153F.—(1) Where a notice of claim is given under section 153E(3) and the 5–431
Commissioner does not terminate the seizure under section 153E(5), the Commissioner
shall apply to a magistrate for the forfeiture of the vessel.
(2) An application under subsection (1) is, for the purpose of section 8 of the
Magistrates Ordinance (Cap 227), a complaint.
(3) When an application under subsection (1) is made to a magistrate, the magistrate
shall issue a summons to any claimant requiring him to appear before a magistrate on
the hearing of the application and shall cause a copy of the summons to be served on
the Commissioner.
(4) On the hearing of an application under subsection (1), the magistrate may order
that the vessel—
(a) be forfeited;
(b) be released to the owner or his agent subject to any condition that he may
specify in the order; or
(c) be disposed of in such manner and subject to such conditions as he may spe-
cify in the order.
(5) On the hearing of an application made under subsection (1)—
(a) a certified true copy of the record of any proceedings, including the decision
of the court, in respect of an offence committed in relation to the vessel shall
be admissible in evidence;
(b) a certificate purporting to be signed by a public officer who states in the cer-
tificate that he effected service in accordance with section 153D(4) shall be
evidence of the facts stated in the certificate and relating to that service; and
(c) Part IV of the Evidence Ordinance (Cap 8) (which relates to the admissibility
of hearsay evidence in civil proceedings) shall apply as if the proceedings
were civil proceedings.
Crimes Ordinance (Cap 200), s 153G

Claims for return of forfeited vessel
153G.—(1) The owner of any vessel forfeited under section 153E or his agent may 5–432
within 6 weeks after the vessel was forfeited give notice in writing to the Commissioner
of his intention to submit to the Chief Executive a moral claim in respect of the forfeited
vessel.
(2) Where the owner of a vessel or his agent has given notice under subsection (1)
and has submitted a moral claim to the Chief Executive by lodging it with the Chief
Secretary for Administration within 1 month from the date of that notice, the Chief
Executive may—
(a) order the return of the forfeited vessel to the claimant; or
(b) direct that the claim be referred to the Chief Executive in Council.
(3) Where a claim is referred to the Chief Executive in Council under subsection (2)
he may—
(a) order the return of the forfeited vessel to the claimant; or
(b) reject the claim.
Crimes Ordinance (Cap 200), s 153H

Effect of appeals and applications on closure orders, and forfeiture orders and declarations
153H.—(1) A closure order or forfeiture order shall be enforced and a declaration 5–433
under section 153D(2) shall remain in effect even if an appeal is pending in respect of a
conviction upon which it is based.
(2) A closure order shall be enforced even if an application has been made under
section 153C for the order to be rescinded or under section 153I for the order to be
suspended.
(3) Where a person successfully appeals against a conviction upon which a closure
order, a declaration under section 153D(2) or a forfeiture order is based, the appellate
court shall rescind the order or declaration unless—
(a) that or any other person was convicted in the same proceedings of an of-
fence of which he remains convicted and, as a result, the closure order, dec-
laration or forfeiture order could have been made without reference to the
first-mentioned conviction; or
593
(b) the appellate court substitutes a verdict of guilty of another offence upon
which the closure order, declaration or forfeiture order could, if the person
had originally been convicted of that offence, have been based.
(4) Where a court rescinds a closure order under subsection (3), it shall as soon as
reasonably practicable send a notice in writing, sealed with the seal of the court, to the
Land Registrar stating that fact.
(5) Where a court rescinds a declaration under subsection (3), it shall as soon as
reasonably practicable send a notice in writing, sealed with the seal of the court, to the
Director of Marine stating that fact.
[The next paragraph is 5-412]
(g) Forfeiture under Copyright Ordinance (Cap 528)

Copyright Ordinance (Cap 528), s 131
Seized articles, etc. liable to forfeiture

5–434 131.—(1) Any article, vessel, aircraft, vehicle or thing seized or detained by an author-
ised officer under section 122 is liable to forfeiture in accordance with the following provi-
sions whether or not any person has been charged of an offence under section 118 or 120.
(2) The Commissioner shall, subject to subsection (3) and not later than 30 days be-
ginning on the date of the seizure or detention of the article, vessel, aircraft, vehicle or
thing serve notice of the seizure or detention on a person who was to the knowledge of
the Commissioner at the time of, or immediately after seizure or detention, an owner of
the article, vessel, aircraft, vehicle or thing.
(3) Subsection (2) does not apply if the article, vessel, aircraft, vehicle or thing was
seized or detained in the presence of—
(a) an owner, or an employee or agent of the owner, of the article, vessel, air-
craft, vehicle or thing;
(b) the person whose offence or suspected offence gave rise to the seizure or
detention; or
(c) in the case of a vessel, aircraft or vehicle, the master or person in charge.
(4) A notice given under subsection (2) is deemed to have been duly served if—
(a) it is delivered to the person on whom it is served;
(c) where it cannot be served in accordance with paragraph (a) or (b), the no-
tice is exhibited at the Customs and Excise Department, in a place to which
the public have access, for a period of not less than 7 days commencing
within 30 days from the date of the seizure or detention of the article, vessel,
aircraft, vehicle or thing.
(5) If an article, vessel, aircraft, vehicle or thing is liable to forfeiture under subsec-
tion (1), the owner or the authorised agent of the owner thereof, or a person who was
in possession thereof at the time of seizure or detention, or a person who has a legal or
equitable interest in it, may within 30 days beginning—
(a) on the date of the seizure or detention; or
(b) where the notice under subsection (2) is—
(i) served by delivery to the person to be served, on the date of service; or
(iii) exhibited as described in subsection (4)(c), on the first day it is so
exhibited,
give notice in writing to the Commissioner of his full name and address for service in
Hong Kong and claim that the article, vessel, aircraft, vehicle or thing is not liable to
forfeiture.
(6) A claimant may withdraw a notice of a claim at any time by notice in writing to
the Commissioner.
(7) Except where a person is charged with an offence under section 118 or 120 in con-
nection with the seized or detained article, vessel, aircraft, vehicle or thing, if on the date
of the expiration of the appropriate period of time specified in subsection (5) for the
giving of a notice of claim no such notice has been given in writing to the Commissioner,
the article, vessel, aircraft, vehicle or thing is forfeited forthwith to the Government.
594
Note: Sections 118 and 120 of the Copyright Ordinance (Cap 528) are concerned,
respectively, with the offences of making or dealing with infringing articles, etc., and
making infringing copies outside Hong Kong, etc.; these offences are set out in full
in Chapter 28.
[The next paragraph is 5-415]
(2) Notes on forfeiture orders

Nature of power
Forfeiture proceedings are civil in nature and do not involve the determination of 5–435
a criminal charge: Wong Hon Sun v HKSAR [2010] 1 HKC 18 (CFA).
If the court has a discretion to order forfeiture, it will be for the party seeking
forfeiture to establish a prima facie case for the forfeiture of the article, and in the
absence of evidence to support an exercise of the discretion to order delivery of the
seized article to a claimant, the court will make an order for forfeiture: Wong Hon Sun
v HKSAR [2010] 1 HKC 18 (CFA).
A claimant who wishes to oppose an application for the forfeiture of a seized article
should establish a case for an exercise of the discretion in his favour. This he may do
by ‘proving facts to the satisfaction of the court, according to the balance of probabil-
ities, that show that he did not in any way participate in or facilitate, either by design
or negligence, the contravention which has resulted in the article becoming liable to
forfeiture’: Wong Hon Sun v HKSAR [2010] 1 HKC 18 (CFA).
Scope of power
Section 102 of the Criminal Procedure Ordinance (Cap 221) is the main in- 5–436
strument for the forfeiture of property. It is a “freestanding power,” and may be
invoked even where there has not been a conviction: HKSAR v Shum Shiu [2011]
2 HKLRD 746.
As regards money and other property associated with drug-related offences, section
56(1) of the Dangerous Drugs Ordinance (Cap 134) confers a discretion on the court
which is exercisable “whether or not any person has been convicted of such offences”.
The object of the legislation is “to ensure as far as possible that crime does not pay, es-
pecially not when the crime involves dangerous drugs”: HKSAR v Chan Chi Wai, Jimmy
[2011] 5 HKC 144.
The court may use section 102 of the Criminal Procedure Ordinance (Cap 221)
either of its own motion or upon application to order that property be confiscated
or returned to the person who appears entitled to it: Yu Shu Yuen v R [1980] HKC
652. If the owner cannot be identified, the court can order that the property be sold
or retained by the authorities; or an order for its destruction can be made if it is of
no value.
Section 102 cannot, as a general forfeiture provision, be invoked if another
Ordinance specifically provides for the disposal of the property: HKSAR v Yeung Shek
Kin [2017] 2 HKC 560.
Partial orders of forfeiture may be made: R v Cheng Wai Man (HCMA 302/1992).
The power to direct forfeiture does not extend to real property: R v Khan (Sultan
Ashraf) [1984] 1 WLR 1405, CA.
Procedure
Parties affected by any decision must be notified, and heard if they so 5–437
wish: HKSAR v Tsang Chin Chiu [2002] 3 HKLRD 172; R v Yu Shu Yuen [1980] HKC
652. A defendant must also be given the chance to argue why an order should not
be made.
The court must give clear reasons for finding that the articles were used in, or for, or
in connection with the commission of an offence: R v Lok Man Chiu [1989] HKLY 411.
Forfeiture proceedings must be conducted in “a judicial and just manner”: R v Wong
595
Shiu Lun [1992] 2 HKC 555. The court should explain the nature of the proceedings
to the parties likely to be affected by any order: R v Man Yiu Hung (HCMA 259/1986).
Principles to be applied
5–438 The following principles were laid down in connection with an offence under the
Import and Export Ordinance (Cap 60) in Attorney General v So Lo Kam [1986] HKLR
564, and they still, in large measure, have applicability in forfeiture cases:
(1) The purpose for which the forfeiture provisions were enacted was to enforce
the Ordinance and to serve as a deterrent against its contravention; that is, that
forfeiture provisions are penal and deterrent in nature.
(2) The court must not make an order, the result of which would be to frustrate the
object of the legislation or to impair its effectiveness.
(3) Once the prescribed conditions are established, the prosecution is not obliged
to prove an additional fact of guilt or negligence.
(4) Once the prescribed conditions are fulfilled, an order for forfeiture should
be made unless some good reason is shown by the claimant, on the balance of
probabilities, as to why a forfeiture order should not be made.
(5) Good faith, or innocence based on ignorance, does not entitle the claimant to
have the article, vessel or vehicle restored to him.
(6) The sentence passed on a claimant in the prior criminal proceedings is
irrelevant.
(7) Considerable financial loss, even for a claimant not of substantial wealth, is a
hardship but not an undue hardship.
(8) The mere fact that forfeiture would cause undue hardship on a claimant does
not, of itself, mean that a forfeiture order should be refused.
These principles need to be viewed in the light of the Court of Appeal’s judgment
in R v CEC Finance Ltd [1993] 1 HKC 127, where it was said that in a case of discre-
tionary forfeiture, parties started on a level playing field and each had the onus of
proving on the balance of probabilities any fact he asserted if it was not admitted by
reference to what was just in the circumstances as the magistrate found proved or ad-
mitted. However, the judgments in each of these cases must now be read in the light
of Wong Hon Sun v HKSAR [2010] 1 HKC 18 (CFA) (see §5–435, above).
Right of appeal
5–439 The rights of appeal against forfeiture orders are not wholly obvious. There is no
right of appeal by a third party against an order of forfeiture made by a judge under
section 102 of the Criminal Procedure Ordinance (Cap 221): Multi-Solid Ltd v Secretary
for Justice [1997] 3 HKC 253. A defendant, however, who has been convicted in the
higher courts may be able to appeal against a forfeiture order by virtue of section 80 of
the Criminal Procedure Ordinance (Cap 221), which defines a sentence as including
‘any order made by a court in dealing with an offender.’ At the summary level, section
113 of the Magistrates Ordinance (Cap 227) would appear to confer a right of appeal
against a forfeiture order by a defendant who has been convicted, at least in most
situations.
Relation of property to offence

5–440 There must be some connection between the property and the offence before a
court will order forfeiture. If there is no connection, the court may be in error in or-
dering forfeiture: R v McDonald (1990-91)12 Cr App R (S) 408.
An order depriving the offender of his rights in a motor vehicle may be made on
his conviction for driving while disqualified: R v Highbury Corner Stipendiary Magistrates’
Court, Ex p Di Matteo (1991) 92 Cr App R 263, DC.
Relationship of forfeiture order to other sentences

5–441 The court is not obliged to take into account forfeiture when determining sentence.
Under the Import and Export Ordinance, forfeiture is separate from sentence: see
Att-Gen v So Ma Por [1981] HKLR 696.
596
Sect. VII] Disqualification § 5–446
However, a defendant can be hard hit if he is both imprisoned and loses his prop-
erty and if a forfeiture order is made in conjunction with a sentence of imprisonment
or a substantial fine, there is a risk of “overdoing the punishment” (per Park J in R v
Buddo (1982) 4 Cr App R (S) 268, DC).
A forfeiture order can still be made if the defendant is acquitted: R v Cheung Tai Yau
(HCMA 414/1992).
Disparity of sentence
Where co-defendants are equally culpable and receive the same custodial sentence, 5–442
a forfeiture order against one of them only will constitute an additional penalty and
may give rise to legitimate complaint on the ground of disparity: R v Ottey (1984) 6
Cr App R (S) 163, CA; but this principle should not be taken too far: see R v Burgess
[2001] 2 Cr App R (S) 2, CA.
Property subject to multiple ownership

In R v Troth (1979) 1 Cr App R (S) 341, CA, a case concerning partnership 5–443
property, Wien J observed that “forfeiture orders ought not to be made except
in simple, uncomplicated cases.” Difficulties would arise where the property was
subject to encumbrances, and it might be appropriate to impose “an increased
financial penalty … in lieu of making a forfeiture order”. The case concerned
partnership property.
Value of the property and the likely financial effects of the order on
the offender
In R v Highbury Corner Stipendiary Magistrates’ Court, Ex p Di Matteo (1991) 92 Cr App 5–444
R 263, the English Divisional Court held the court must have some information about
the value of the property to be forfeited and the likely effects of forfeiture on the ac-
cused, unless it was such that the court can form a fair estimate of its value without
evidence.
VII. DISQUALIFICATION
A. Disqualification from Driving

The circumstances in which an order of disqualification from driving may be im- 5–445
posed upon a defendant, and the terms of such an order, are explained in Chapter 34,
Motor Vehicle and Driving Offences (qv).
(1) Legislation
Road Traffic Ordinance (Cap 374), s 69A
Start of disqualification period

569A.—(1) This section applies if— 5–446
(a) a court or magistrate convicts a person of a relevant scheduled offence;
(b) the conviction is the person’s second or subsequent conviction of a relevant
scheduled offence, regardless of whether that conviction is for the same or
for a different relevant scheduled offence;
(c) the court or magistrate sentences the person to undergo a term of imprison-
ment or detention and the sentence is not suspended; and
(d) the court or magistrate orders that the person be disqualified for a fixed period.
(2) The court or magistrate must direct that the disqualification period is not to start
to run until the expiration of the term of imprisonment or detention, or of any other
term of imprisonment or detention which the person is undergoing at that expiration,
or has been previously sentenced to undergo (whichever is the later), unless the court
or magistrate for special reasons decides not to make such a direction.
(3) The court or magistrate may deal with the conviction of a relevant scheduled
offence as a first conviction if, as at the date on which the offence was committed,
597
at least 5 years have passed since the person’s last conviction of a relevant scheduled
offence.
(4) Subject to subsection (5), a person is disqualified by this section for the whole of
any day during which or during part of which the person is released from custody before
the disqualification period is to start to run by virtue of a direction given under subsec-
tion (2) and any such day must be deducted from the period of disqualification to be
served by the person.
(5) The court or magistrate may direct that a person is not disqualified by this section
during any period of release from custody of a kind referred to in subsection (8)(a) (ad-
mission to bail pending sentence or appeal).
(6) Subsection (4) ceases to operate if the period of disqualification becomes ex-
hausted because of deductions made under that subsection. In such a case the disquali-
fication period does not start to run in accordance with the direction of the court or
magistrate and must be taken for all purposes to have been served.
(7) For the purpose of subsection (6), each 30 days deducted under subsection (4) is
to be treated as being equal to a month.
(8) Without limiting subsection (4), a person must be taken to be released from cus-
tody for the purposes of this section during any period that he or she—
(a) is, following his or her conviction of the relevant scheduled offence, ad-
mitted to bail pending sentence or appeal;
(b) is released from prison or detention on leave of absence granted under—
(i) section 12A of the Prisons Ordinance (Cap 234);
(ii) rule 17(1) of the Prison Rules (Cap 234 sub. leg. A);
(iii) regulation 14(1) of the Detention Centres Regulations (Cap 239 sub. leg. A);
(iv) regulation 13(1) of the Drug Addiction Treatment Centres Regulations
(Cap 244 sub. leg. A);
(v) regulation 18(1) of the Training Centres Regulations (Cap 280 sub.
leg. A); or
(vi) section 17(1) of the Rehabilitation Centres Regulation (Cap 567 sub. leg. A);
(c) is released from imprisonment under section 7(1) or (2) of the Prisoners
(Release under Supervision) Ordinance (Cap 325);
(d) is released under an order made under section 15(1)(b) of the Longterm
Prison Sentences Review Ordinance (Cap 524); or
(e) while undergoing a period of residence at a rehabilitation centre referred
to in section 3(b) of the Rehabilitation Centres Ordinance (Cap 567), is
engaged in activities outside that centre under permission granted under
section 5(1) of that Ordinance.
(9) In this section “relevant scheduled offence” (ᴹ䰌㺘ࡇ㖚㹼) means an offence
mentioned in the Schedule to the Road Traffic (Driving-offence Points) Ordinance (Cap
375) for which the number of points set out opposite that offence in that Schedule is 10.
(Added 19 of 2010 s. 18)
B. Disqualification of Company Directors

(1) Legislation
Companies Ordinance (Cap 32), s 168D
Disqualification orders: general
5–447 168D.—(1) In the circumstances specified in this Part, a court may, and under section
168H shall, make against a person a disqualification order, that is to say an order that he
shall not, without leave of the court—
(a) be a director of a company;
(b) be a liquidator of a company;
(c) be a receiver or manager of a company’s property; or
(d) in any way, whether directly or indirectly, be concerned or take part in the
promotion, formation or management of a company, for a specified period
beginning with the date of the order.
(2) In each section which gives to a court power or, as the case may be, imposes on
it the duty to make a disqualification order there is specified the maximum (and, in
section 168H, the minimum) period of disqualification which may or, as the case may
be, shall be imposed by means of the order.
598
(3) Where a disqualification order is made against a person who is already subject to
such an order, the periods specified in those orders shall run concurrently.
(4) A disqualification order may be made on grounds which are or include matters
other than criminal convictions, notwithstanding that the person in respect of whom it
is to be made may be criminally liable in respect of those matters.
Companies Ordinance (Cap 32), s 168E

Disqualification on conviction of indictable offence
168E.—(1) The court may make a disqualification order against a person where he is 5–448
convicted of an indictable offence (whether on indictment or summarily)—
(a) in connection with the promotion, formation, management or liquidation of
a company; or
(b) in connection with the receivership or management of a company’s property,
or any other indictable offence his conviction for which necessarily involves a finding
that he acted fraudulently or dishonestly.
(2) In subsection (1) “the court” – means the Court of First Instance or the court by
or before which the person is convicted of the offence.
(3) The maximum period of disqualification under this section is, where the disquali-
fication order is made—
(a) by a judge of the Court of First Instance, 15 years;
(b) by a judge of the District Court, 10 years;
(c) by a magistrate, 5 years.
(4) Where a disqualification order is made by a magistrate and the Official
Receiver or—
(a) the liquidator;
(b) a past or present member; or
(c) a creditor,
of the company affected believes that the facts would justify a disqualification order for
a longer period, he may apply to the Court of First Instance for such a disqualification
order and it may, if it considers it appropriate in the circumstances, make an order for
such longer period as it determines.
Companies Ordinance (Cap 32), s 168F
Disqualification for persistent breaches of Ordinance
168F.—(1) The court may make a disqualification order against a person where it 5–449
appears to it that he has been persistently in default in relation to provisions of this
Ordinance requiring any return, account or other document to be filed with, delivered
or sent, or notice of any matter to be given, to the Registrar.
(2) On an application to the court for an order to be made under this section,
the fact that a person has been persistently in default in relation to such provisions
may (without prejudice to its proof in any other manner) be conclusively proved by
showing that in the 5 years ending with the date of the application he has been ad-
judged guilty (whether or not on the same occasion) of 3 or more defaults in relation
to those provisions.
(3) A person is to be treated under subsection (2) as being adjudged guilty of a de-
fault in relation to any provision if—
(a) he is convicted of an offence consisting in a contravention of that provision
(whether on his own part or on the part of any company); or
(b) an order of the court is made against him under section 279, 302 or 306.
(4) For the purposes of this section, “court” – includes a magistrate where the appli-
cation under this section is made in the course of a prosecution in which the person is
adjudged guilty of a default referred to in subsection (1) and, as a result, subsection (2)
applies to him.
(5) The maximum period of disqualification under this section is 5 years.
Companies Ordinance (Cap 32), s 168G
Disqualification for fraud, etc, in winding up
168G.—(1) The court may make a disqualification order against a person if, in the 5–450
course of the winding up of a company, it appears that he—
(a) has been guilty of an offence for which he is liable (whether he has been
convicted or not) under section 275; or
599
(b) has otherwise been guilty, while an officer or liquidator of the company
or receiver or manager of its property, of any fraud in relation to the com-
pany or of any breach of his duty as such officer, liquidator, receiver or
manager.
(2) The maximum period of disqualification under this section is 15 years.
(3) In this section, “officer” includes a shadow director.
Companies Ordinance (Cap 32), s 168H
Duty of court to disqualify unfit directors of insolvent companies
5–451 168H.—(1) The court shall make a disqualification order against a person in any case
where, on an application under this section, it is satisfied—
(a) that he is or has been a director of a company which has at any time become
insolvent whether while he was a director or subsequently; and
(b) that his conduct as a director of that company, either taken alone or
taken together with his conduct as a director of any other company or
companies, makes him unfit to be concerned in the management of a
company.
(2) For the purposes of this section, a company becomes insolvent if—
(a) the company goes into liquidation at a time when its assets are insufficient
for the payment of its debts and other liabilities and the expenses of the
winding up; or
(b) a receiver of the company is appointed,
and references to a person’s conduct as a director of any company or companies in-
clude, where that company or any of those companies has become insolvent, that per-
son’s conduct in relation to any matter connected with or arising out of the insolvency
of that company.
(3) In this section and section 168I, “director” includes a shadow director.
(4) Under this section the minimum period of disqualification is 1 year, and the max-
imum period is 15 years.
Companies Ordinance (Cap 32), Section 168I
Applications to court under section 168H: reporting provisions
5–452 168I.—(1) If it appears to—
(a) the Financial Secretary; or
(b) the Official Receiver,
that it is in the public interest that a disqualification order under section 168H should
be made, an application for the making of such an order may be made by the Financial
Secretary or the Official Receiver.
(2) Except with the leave of the court, an application for the making under section
168H of a disqualification order against any person shall not be made after the end of
the period of 4 years beginning, in the case of a company—
(a) that is wound up, with the day on which the winding up of the company, of
which that person is or has been a director, is deemed, under section 184,
228A or 230, as the case may be, to have commenced; or
(b) that goes into receivership, with the day on which the receiver vacated his
office.
(3) If it appears to—
(a) the liquidator of a company that is being wound up by him; or
(b) the receiver in respect of a company for which he has been so appointed,
that the matters listed in section 168H(1)(a) and (b) may apply to a person who is or
has been a director of that company, he shall forthwith report the matter to the Official
Receiver who may report the matter to the Financial Secretary.
(4) The Financial Secretary or the Official Receiver may require the liquidator or
receiver of a company, or the former liquidator or receiver of a company—
(a) to furnish him with such information with respect to any person’s conduct as
a director of the company; and
(b) to produce and permit inspection of such books, papers and other records
relevant to that person’s conduct as such a director,
as the Financial Secretary or the Official Receiver, as the case may be, may reasonably
require for the purpose of determining whether to exercise, or of exercising, any of his
functions under this section.
600
Companies (Disqualification of Directors Proceedings)
Rules (Cap 32K), rule 9
Making and setting aside of disqualification order
9.—(1) The court may make a disqualification order against the respondent, 5–453
whether or not the latter appears, and whether or not he had completed and re-
turned the acknowledgment of service of the summons, or filed evidence in accord-
ance with rule 7.
(2) Any disqualification order made in the absence of the respondent may be set aside
or varied by the court on such terms as it thinks just.
Companies (Disqualification of Directors Proceedings)
Rules (Cap 32K), rule 10
Commencement of disqualification order
10.—Unless the court otherwise orders, a disqualification order takes effect at the be- 5–454
ginning of the 21st day after the day on which the order is made.
(2) Notes
Disqualification order – scope of power
The expression “management” of a company is not limited to the internal affairs of 5–455
the company; disqualification orders have been upheld in England in cases of obtain-
ing by deception and similar offences committed in the course of the trading activities
of the company: see R v Corbin 6 Cr App R (S) 17, DC; R v Austen 7 Cr App R (S) 214,
CA; and R v Georgiou 87 Cr App R 207, CA. A person convicted of “insider dealing”
may be disqualified from acting as the director of a company: R v Goodman, 97 Cr App
R 210, CA (the correct test is whether the offence had some relevant factual connec-
tion with the company).
The power to disqualify a director under section 168H requires an express finding
that the person concerned is guilty of conduct which makes him unfit to be concerned
in the management of a company, but section 168E is concerned with a different situ-
ation and gives the court a completely general and unfettered discretion: R v Young
(SK), 12 Cr App R (S) 262, CA.
In Re Emperor Hotel Management Co Ltd (No 2) [2003] 1 HKLRD 621, the Court of First
Instance when considering a director’s fitness under section 168H(1)(b), held that his
conduct as director of C made him unfit to be concerned in the management of a
company. There was no evidence that the director had taken any or any reasonable
steps to ensure compliance by C of the obligations imposed by sections 121, 122 and
274. The Court bore in mind that X was a qualified accountant and C’s director of fi-
nance and held, applying Drincqbier v Wood [1899] 1 Ch 393;Re Stanford Services (1987)
3 BCC 326;Re Majestic Recording Studios (1988) 4 BCC 519; Re Westmid Packaging Services
Ltd (No 2) [1998] 2 All ER 124 and Re T&D Services (Timber Preservation & Damp Proofing
Contractors) [1990] BCC 592, that it was of the greatest importance that any individual
who undertook the statutory and fiduciary obligations of a company director, realised
that these were inescapable personal responsibilities, particularly where he was an ac-
tive director who must accept responsibility for the failure to maintain and produce
adequate books of account.
An order for disqualification is however a punishment and it is inappropriate for
a punishment to be linked with a conditional discharge: R v Young (SK) (1991) 12 Cr
App R (S) 262, CA.
It is inappropriate to combine an order for disqualification with a compensation
order, if the effect of the disqualification would be to deprive the offender of the
means to earn money with which to pay compensation: R v Holmes (1992) 13 Cr App
R (S) 29, CA.
The upper bracket of disqualifications, above 10 years, should be reserved for
particularly serious cases, including those where the director concerned had been
disqualified previously; the middle bracket of six to 10 years should be imposed for
serious cases which did not merit the top bracket: R v Millard (1994) 15 Cr App R
(S) 445, CA. See also R v Cobbey (1993) 14 Cr App R (S) 82, CA.
601
A court which disqualifies an offender under section 168E may not specify the func-
tions from which the offender is disqualified under section 168D; section 168D envis-
ages a single disqualification with a number of different consequences: R v Cole, Lees
and Birch [1998] BCC 87, CA.
VIII. ORDERS UNDER THE MENTAL HEALTH ORDINANCE
A. Hospital Orders
(1) Legislation
Mental Health Ordinance (Cap 136) s 45
Powers of court or magistrate to make a hospital order

5–456 s.45. (1) Where—
(a) a person is—
(i) convicted by the Court of First Instance or a District Court of an of-
fence other than an offence the sentence for which is fixed by law;
(ii) convicted by a magistrate of an offence punishable on summary convic-
tion by imprisonment; or
(iii) charged before a magistrate with an act or omission as an offence pun-
ishable on summary conviction by imprisonment and the magistrate is
satisfied that such person did the act or made the omission; and
(b) the court or magistrate is satisfied on the written or oral evidence of 2 regis-
tered medical practitioners received in accordance with section 46 that—
(i) such person is a mentally disordered person; and
(ii) the nature or degree of the mental disorder from which the person
is suffering warrants his detention in the Correctional Services
Department Psychiatric Centre or a mental hospital for treatment; and
(c) the court or magistrate is of the opinion, having regard to all the circum-
stances including the nature of the offence and the character and ante-
cedents of such person, and to the other available methods of dealing with
him, that the most suitable method of disposing of the case is by means of an
order under this section,
the court or magistrate may by a hospital order authorise the admission of the person
to and his detention in the Correctional Services Department Psychiatric Centre or a
mental hospital specified in the order or, if the person is under 14 years of age, in a
mental hospital specified in the order, and may specify in the order the period during
which such person should be so detained which shall not be greater than the sentence
which the court or magistrate could have imposed in respect of the offence with which
such person was charged. (1A) Where under subsection (1) the court or magistrate by a
hospital order authorises the admission of a person to, and detention in, a mental hos-
pital, and is of the opinion that in all the circumstances of the case the proviso to section
47(2) should not apply, the judge or magistrate may include a statement to that effect in
the hospital order and, if he does so, that proviso shall not apply.
(2) A hospital order shall not be made under this section unless the court or magis-
trate is satisfied that arrangements have been made for the admission of the person to
the Correctional Services Department Psychiatric Centre or that mental hospital within
28 days after the date of the hospital order, in the event of the hospital order being made
by the court or magistrate.
(3) Where a hospital order has been made, the court or magistrate shall not impose a
sentence of imprisonment or a fine or make a probation order in respect of the offence
but may make any other order which the court or magistrate has power to make apart
from this section and for the purpose of this subsection “sentence of imprisonment” in-
cludes any sentence or order for detention in a remand home, a reformatory school, a
house of detention or a training centre.
Mental Health Ordinance (Cap 136), s 46
Requirement as to medical evidence
5–457 46.—(1) Of the registered medical practitioners whose evidence is received in accord-
ance with section 45(1)(b) or 54(3) at least one shall be a medical officer.
602
Sect. VIII] Orders Under the Mental Health Ordinance § 5–459
(2) For the purpose of section 45(1)(b) or 54(3) a report in writing purporting to be
signed by a registered medical practitioner may, subject to the provisions of this section,
be received in evidence without proof of the signature or qualifications of the registered
medical practitioner but the court or magistrate may require that the registered medical
practitioner, by whom the report was signed, be called to give oral evidence.
(3) Where, in pursuance of the directions of a court or magistrate, a report of a regis-
tered medical practitioner is tendered in evidence in accordance with section 45(1)(b)
otherwise than by or on behalf of the accused—
(a) if the accused is represented by counsel or solicitor, a copy of the report shall
be given to his counsel or solicitor;
(b) if the accused is not so represented, the substance of the report shall be dis-
closed to the accused or, in the case of a child or young person, to his parent
or guardian if present in court; and
(c) in any case, the accused, or in the case of a child or young person, his parent
or guardian may require that the registered medical practitioner who signed
the report be called to give oral evidence, and evidence to rebut the evidence
contained in the report may be called by or on behalf of the accused.

Effect of hospital order
47.—(1) A hospital order shall be sufficient authority for— 5–458
(a) the Commissioner of Correctional Services or any other person directed to
do so by the court or magistrate to convey the person named in the order to
the Correctional Services Department Psychiatric Centre or the mental hos-
pital specified in the order within a period of 28 days from the date of the
order; and
(b) the Commissioner of Correctional Services to admit him to the Correctional
Services Department Psychiatric Centre or the medical superintendent to
admit him to the mental hospital and to detain him therein in accordance
with the provisions of this Ordinance.
(1A) A person who is admitted to the Correctional Services Department Psychiatric
Centre in pursuance of a hospital order shall be treated, for the purposes of the Prisons
Ordinance (Cap 234), as if he had been lawfully confined in a prison in accordance with
section 7 of that Ordinance except that during the period for which he is ordered to be
detained in the Correctional Services Department Psychiatric Centre, or if no period is
specified in the order, while the order is in force—
(a) the power of the Commissioner of Correctional Services to grant leave of
absence under the Prisons Ordinance (Cap 234) shall not be exercised; and
(b) the person shall not be discharged there from unless with the prior consent
(2) A person who has been admitted to a mental hospital in pursuance of a hospital
order shall be treated, for the purposes of Part III, as if he had been detained in a mental
hospital in accordance with section 36:
Provided that, unless the hospital order has been endorsed under section 45(1A),
the power to grant permission for leave of absence under section 39, to discharge under
section 42A or to discharge conditionally under section 42B shall be exercisable only
with the prior consent of the Chief Executive.
(3) Where—
(a) a person is admitted to the Correctional Services Department Psychiatric
Centre; or
(b) a person is admitted to a mental hospital,
in pursuance of a hospital order, any previous order by which he was liable to be
detained in a mental hospital shall cease to have effect.
Appeal against hospital order
48.—Any person who is aggrieved by a hospital order made in respect of him or in 5–459
respect of a child or young person of whom he is parent or guardian may appeal against
the hospital order in the same manner as any other judgment or order of the court or
magistrate and in any such appeal, the provisions of any other enactment relating to ap-
peals against orders or judgments of the court or magistrate shall apply.
603
Period of detention under this Part
5–460 50.—No person shall be detained—
(a) in pursuance of a hospital order, being an order authorising his detention
for a specified period, after the expiration of that period; or
(b) if he is serving a sentence of imprisonment in pursuance of the order of
any court, in a mental hospital or the Correctional Services Department
Psychiatric Centre after the expiration of the sentence of imprisonment,
unless he is detained under Part III otherwise than as applied by this Part.
Remand
5–461 51.—(1)
(a) If a court or magistrate is of the opinion that any person who is charged be-
fore the court or magistrate with an offence, including a person in respect of
whom an information or charge for an indictable offence is being heard or
has been heard by the magistrate in accordance with the provisions of Part
III of the Magistrates Ordinance (Cap 227), or who has been convicted but
not sentenced of an offence being, in the case of a conviction by a magis-
trate, an offence punishable on summary conviction by imprisonment or an
indictable offence of which the magistrate has convicted the accused sum-
marily, may be or is alleged to be a mentally incapacitated person, the court
or magistrate may remand such person—
(i) to a mental hospital; or
(ii) to a prison; or
(iii) to a training centre established under section 3 of the Training Centres
Ordinance (Cap 280) in the case of a person not less than 16 years of
age but under 21 years of age; or
(iv) to a place of detention appointed under section 16 of the Juvenile
Offenders Ordinance (Cap 226) in the case of child or young person
within the meaning of that Ordinance,
for observation, investigation and treatment for any period not exceeding 14 days
and on the making of any such order shall adjourn the proceedings against such
person for such period and may extend such period of 14 days by further periods of
7 days each so that the total period of remand does not in any case exceed 42 days.
(b) Without prejudice to the provisions of any other Ordinance, any person re-
manded under paragraph (a) to a prison, a training centre or a place of
detention for observation, investigation and treatment may be removed in
the custody of an officer of the Correctional Services Department or a public
officer appointed by the Director of Social Welfare in the case of a child or
young person, from the prison, training centre or place of detention for the
purpose of attending a Government psychiatric clinic or Hospital Authority
(within the meaning of the Hospital Authority Ordinance (Cap 113)) psychi-
atric clinic for observation, investigation and treatment.
(c) The Training Centres Ordinance (Cap 280) shall apply mutatis mutandis to
any person remanded to a training centre under paragraph (a) for observa-
tion, investigation and treatment.
(d) The Remand Home Rules (Cap 226 sub leg) shall apply to any child or
young person remanded to a place of detention under paragraph (a) for
observation, investigation and treatment.
(2) (a) A court or magistrate may, in lieu of remanding a person under subsection
(1), admit him to bail in accordance with the periods specified in subsection
(1) on his procuring or producing such surety or sureties as the court or
magistrate thinks fit.
(b) In the case of any person admitted to bail under paragraph (a) it shall be a
condition of the recognisance—
(i) that he shall undergo observation, investigation and treatment by a medical
officer at such mental hospital or Government psychiatric clinic or Hospital
Authority (within the meaning of the Hospital Authority Ordinance (Cap
113)) psychiatric clinic as may be specified in the recognisance; or
(ii) that he shall undergo observation, investigation and treatment by a
suitably qualified medical practitioner named in the recognisance.
604
(c) In the case of any person admitted to bail under paragraph (a) it may be a
condition of the recognisance that the person reside in a mental hospital for
the purposes of observation, investigation and treatment for such period,
within the period specified in the recognisance, as may be required by the
examining medical officer or medical practitioner.
(d) Notwithstanding any other provision of this Ordinance, where arrangements
have been made for the reception of any person so required to reside at a
mental hospital for the purposes of any observation, investigation and treat-
ment he may be admitted to the mental hospital.
(e) Where a court or magistrate is satisfied by information on oath that a person
admitted to bail under paragraph (a) has failed to observe any of the condi-
tions of the recognisance taken under this subsection the court or magistrate
may issue a warrant for the apprehension of the person; and the recogni-
sance may be enforced in like manner, as a recognisance may be enforced
under the Criminal Procedure Ordinance (Cap 221) or under Part II of the
Magistrates Ordinance (Cap 227), as the case may be.
(4) Any order made in accordance with subsection (1) or (2) may be made in the
absence of the person if the court or magistrate is satisfied on such evidence as shall be
placed before him that no useful purpose might be served by the personal appearance
before the court or magistrate of such person.
Removal to a mental hospital of a person serving a sentence of imprisonment
52.—(1) If the Chief Executive is satisfied from the report of a medical officer that a 5–462
person who is serving a sentence of imprisonment is a mentally disordered person and
that the nature or degree of the mental disorder from which he is suffering warrants
his detention in a mental hospital for treatment, the Chief Executive may, by transfer
order, direct that the person be removed to and detained in such mental hospital as is
specified in the order.
(2) A transfer order shall cease to have effect at the expiration of a period of 14 days from
the date on which it was made unless within that period the person with respect to whom it
was made has been received in the mental hospital specified in the transfer order.
(3) A person who is admitted to a mental hospital in pursuance of a transfer order
shall be treated for the purposes of Part III as if he had been detained in a mental hos-
pital under section 36 except that—
(a) the power of the medical superintendent to permit absence on trial under
section 39 shall not be exercised; and
(b) the person shall not be discharged therefrom except with the consent of the
Chief Executive.
(4) If the Chief Executive is satisfied from the report from a medical superintendent
that a person, who was transferred to a mental hospital by a transfer order made under
subsection (1) and whose sentence of imprisonment has not expired, no longer re-
quires treatment for mental disorder the Chief Executive may by order direct that the
person be returned to the custody of the Commissioner of Correctional Services or the
Director of Social Welfare, as the case may be, to serve the remainder of his sentence of
imprisonment.
(5) In this section “sentence of imprisonment” includes any sentence or order for
detention in a remand home, a reformatory school, a house of detention, a detention
centre, a training centre or an addiction treatment centre.
Mental Health Ordinance (Cap 136), s 52A
Removal to a Correctional Services Department Psychiatric Centre of persons detained in a mental
hospital
52A.—(1) The Chief Executive may, after consultation with the Commissioner of 5–463
Correctional Services and a medical superintendent, by order direct that a person de-
tained in a mental hospital in pursuance of an order made under this Part or under
the Criminal Procedure Ordinance (Cap 221), be removed to and detained in the
Correctional Services Department Psychiatric Centre.
(2) An order under subsection (1) shall be sufficient authority for the Commissioner
of Correctional Services to admit the person removed from the mental hospital to the
Correctional Services Department Psychiatric Centre and to detain him therein for the
605
period specified in the order authorising his detention in the mental hospital, or if no
such period is specified, while that order is in force.
(3) A person who is removed to and detained in the Correctional Services Department
Psychiatric Centre in pursuance of an order under subsection (1) shall be treated, for
the purposes of the Prisons Ordinance (Cap 234), as if he had been lawfully confined in
a prison in accordance with section 7 of that Ordinance except that during the period
within which he is liable to be detained—
(a) the power to the Commissioner of Correctional Services to grant leave of
absence under the Prisons Ordinance (Cap 234) shall not be exercised; and
(b) the person shall not be discharged there from unless with the prior consent
Mental Health Ordinance (Cap 136), s 52B

Removal to a mental hospital of persons detained in the Correctional Services Department
Psychiatric Centre
5–464 52B.—(1) The Chief Executive may, after consultation with a medical superintendent
and the Commissioner of Correctional Services, by order direct that a person detained
in the Correctional Services Department Psychiatric Centre in pursuance of an order
made under this Part or under the Criminal Procedure Ordinance (Cap 221), be re-
moved to and detained in a mental hospital.
(2) An order under subsection (1) shall be sufficient authority for the medical super-
intendent to admit the person removed from the Correctional Services Department
Psychiatric Centre to a mental hospital and to detain him therein for the period spe-
cified in the order authorising his detention in the Correctional Services Department
Psychiatric Centre, or if no such period is specified, while that order is in force.
(3) A person who is removed to and detained in a mental hospital in pursuance of
an order under subsection (1) shall be treated as being detained there in accordance
with section 36 except that during the period within which he is liable to be detained—
(a) the power of the medical superintendent to permit absence on trial under
section 39 shall not be exercised; and
(b) the person shall not be discharged therefrom except with the consent of the
Chief Executive.

Removal to a mental hospital of other prisoners
5–465 53.—(1) If the Chief Executive is satisfied from the report of a medical officer that a
person to whom this section applies is a mentally disordered person and that the nature
or degree of the mental disorder from which he is suffering warrants his detention of the
person in a mental hospital for medical treatment, the Chief Executive may by transfer
order direct that the person be removed to and detained in a mental hospital.
(2) This section shall apply to any person who is—
(a) committed in custody for trial in accordance with section 85(2) of the
Magistrates Ordinance (Cap 227);
(b) remanded in custody in accordance with section 90 of the Magistrates
Ordinance (Cap 227), the magistrate having made an order of transfer in
respect of such person in accordance with section 88 of that Ordinance;
(c) remanded in custody by a court or magistrate;
(d) remanded in custody by the Court of First Instance or by a District Court to
await a judgment or sentence which has been respited;
(e) a civil prisoner, that is to say, a person committed by a court to prison for
a limited term, including a person committed to prison in pursuance of
a writ of attachment, not being a person falling to be dealt with under
section 52; or
(f) detained in any place by virtue of the Immigration Ordinance (Cap 115).
(3) The provisions of section 52(2), (3) and (4) shall apply for the purposes of this
section and to any transfer made in accordance with this section.
Further provisions as to person committed for trial or sentence or on remand
5–466 54.—(1) A transfer order given in accordance with section 53(1) shall cease to have
effect when the case of the person named in the transfer order has been disposed of by
606
the court or magistrate having jurisdiction to try or otherwise deal with him; but without
prejudice to any power of that court or magistrate to make a hospital order under this
Part in his case.
(2) Where a transfer order has been given in accordance with section 53(1)—
(a) if the Chief Executive is notified by a medical superintendent at any time
before the person named in the transfer order is brought before the court
or magistrate having jurisdiction to try or otherwise deal with him, that
the person no longer requires treatment for mental disorder, the Chief
Executive may by order direct that such person be remitted to any place
where he might have been detained if he had not been removed to a mental
hospital, there to be dealt with as if he had not been so removed, and on his
arrival at the place to which he is so remitted the transfer order shall cease to
have effect;
(b) if no order has been made in accordance with paragraph (a) and if it appears
to the court or magistrate having jurisdiction to try or otherwise deal with
the person named in the transfer order that it is impracticable or inappro-
priate to bring that person before the court or magistrate and the conditions
set out in subsection (3) are satisfied, the court or magistrate may make a
hospital order in respect of such person in his absence and, in the case of a
person awaiting trial, without convicting him.
(3) A hospital order may be made in respect of a person in accordance with sub-
section (2)(b) if the court or magistrate is satisfied, on the written or oral evidence
of 2 registered medical practitioners received in accordance with section 46(1) and
(2) that—
(a) such person is a mentally disordered person; and
(b) the nature or degree of the mental disorder from which the person is suf-
fering warrants his detention in a mental hospital for medical treatment, and
the court or magistrate is of the opinion after considering any depositions or
other documents required to be sent to the proper officer of the court, that
it is proper to make a hospital order.
(4) When a transfer order has been made in respect of a person remanded in cus-
tody by a magistrate, the power of further remanding such person under section 20 of
the Magistrates Ordinance (Cap 227) may be exercised by the magistrate without such
person being brought before the magistrate.
(5) Any transfer order made in respect of a civil prisoner shall cease to have effect on
the expiration of the period during which he would but for his removal to the mental
hospital, be liable to be detained in prison.
Hospital order in respect of persons awaiting trial or sentence
54A.—If it appears to the court or magistrate having jurisdiction to try or otherwise 5–467
deal with a person specified in section 53(2)(a), (b), (c) or (d) that—
(a) the conditions set out in section 54(3) are satisfied; and
(b) it is impracticable or inappropriate to bring that person before the court or
magistrate,
the court or magistrate may, by a hospital order made in respect of that person in his
absence and, if he is a person awaiting trial, without convicting him, authorise his ad-
mission to and detention in the Correctional Services Department Psychiatric Centre.
Medical reports on people on remand
56.—(1) If a person is committed in custody for trial in accordance with section 85(2) 5–468
of the Magistrates Ordinance (Cap 227), the Commissioner of Correctional Services—
(a) (Repealed 24 of 1993 section 18).
(b) if the Secretary for Justice makes application in writing to the Commissioner
of Correctional Services in respect of the prisoner, shall, make an order in
accordance with section 55(1), even if the Commissioner of Correctional
Services has no reason to believe that the prisoner is a mentally disordered
person.
(2) If the prisoner is the subject of an application by the Secretary for Justice in ac-
cordance with subsection (1)(b), the medical officer of the prison or the medical super-
intendent of the mental hospital, as the case may be, shall, not less than 7 days before
607
the date fixed for the trial of the prisoner, submit to the Registrar and to the Secretary
for Justice a report on the mental condition of the prisoner, stating whether or not the
prisoner has exhibited any indication of insanity and whether or not he is fit to plead.
(3) A report submitted in accordance with subsection (2) shall not express any
opinion as to the degree of responsibility of the prisoner at the time when the offence
with which he is charged was committed but if, from symptoms exhibited while under
observation in the prison or in the mental hospital, the medical officer of the prison or
the medical superintendent of the mental hospital, as the case may be, is of the opinion
that insanity exists and has done so for some time previous to the date when the offence
was committed, or that there is any history of insanity, his report should embody this
opinion.
Persons ordered to be admitted to a mental hospital under Criminal Procedure Ordinance
5–469 57.—Notwithstanding anything contained in section 76 of the Criminal Procedure
Ordinance (Cap 221), the Chief Executive may order that a person found not guilty by
reason of insanity be detained in custody in some other manner than is specified in that
Ordinance.
5–470 If the nature of a defendant’s criminal record and counsel’s submissions indicate a
chronic mental health problem, it behoves the court to examine the matter, regard-
less of whether the defendant has relied on it, or whether counsel has asked the court
to investigate further. If defence counsel does not suggest that a psychiatrist report be
obtained, it is open to the judge to obtain one before sentencing, particularly if the
circumstances of the offence are unusual. If a hospital order is recommended, “it is
usually not desirable that the judge ignores such an order as the best sentencing op-
tion”: HKSAR v Chow Kin Chung (CACC 8/2007, [2007] HKEC 1241).
Section 76 of the Criminal Procedure Ordinance (Cap 221) contains a scheme for
the making of detention orders in a psychiatric centre or a mental hospital where
the defendant is found not guilty because of insanity, or is under a disability and is
responsible for the acts or omissions alleged. Although a s 76 order is not a hospital
order, a court should indicate if a detention order is made that section or under s
45 (Cap 236), as the powers available to the court under the two provisions are not
the same: HKSAR v Wong Chun Kit [2018] 2 HKLRD 308, [2018] 2 HKC 420 [2018]
HKCFI 624.
B. Guardianship Orders
(1) Legislation
Power of court or magistrate to make guardianship order

5–471 44A.—(1) Where—
(a) section 76(1) of the Criminal Procedure Ordinance (Cap 221) applies to a
person;
(b) the court or magistrate concerned is satisfied, on the written or oral evidence
of 2 or more registered medical practitioners (of whom not less than 2 shall
be psychiatrists on the Specialist Register established under section 6(3) of
the Medical Registration Ordinance (Cap 161)), that—
(i) the person is mentally incapacitated to a nature or degree which war-
rants his reception into guardianship under this Part; and
(ii) it is necessary in the interests of the welfare of the person or for the
protection of other persons that the person should be so received;
and
stances of the case, including—
(i) the nature of any act or omission by virtue of which the section referred
to in paragraph (a) applies to him;
(ii) the character and antecedents of the person;
(iii) the other available methods of dealing with him; and
(iv) the advice of the Director of Social Welfare on—
608
(A) the suitability of an order under this section in the case of the
person; and
(B) where applicable, the availability of a suitable person to be author-
ised under paragraph (i) if there is an order under this section in
the case of the person,
that the most suitable method of disposing of the case is by means of an
order under this section, the court or magistrate may—
(v) by an order (“guardianship order”) place the person under the guard-
ianship of the Director of Social Welfare, or a person authorised by
the Director of Social Welfare for the purpose, as may be specified in
the order;
(vi) specify in the guardianship order the period (“validity period”) during
which the person should be so placed which shall not exceed 1 year
commencing on the date of the order.
(2) Section 45(3) shall apply to a guardianship order as it applies to a hospital order.
Mental Health Ordinance (Cap 136), s 44B
Effect of guardianship order
44B.—(1) A guardianship order may confer on the Director of Social Welfare or any 5–472
other person authorised by the Director of Social Welfare, as guardian, to the exclusion
of any other person one or more of the following powers, namely—
(a) the power to require the mentally incapacitated person to reside at such
place as may be specified by the guardian;
(b) the power to convey, or to arrange the conveyance of, the mentally incapaci-
tated person to the place so specified by the guardian, and such reasonable
force may be used as is necessary for the purpose;
(c) the power to require the mentally incapacitated person to attend at places
and times so specified by the guardian for the purpose of treatment or spe-
cial treatment (within the meaning of section 59ZA) or occupation, educa-
tion or training;
(d) the power to consent to that treatment (other than special treatment) on
behalf of the mentally incapacitated person but only to the extent that the
mentally incapacitated person is incapable of understanding the general na-
ture and effect of any such treatment;
(e) the power to require access to the mentally incapacitated person to be
given, at any place where that person is residing, to any registered medical
practitioner, approved social worker, or other person (if any) specified in
the order;
(f) the power to hold, receive or pay such monthly sum specified in the order
on behalf of the mentally incapacitated person for the maintenance or other
benefit of that person as if the guardian were a trustee of that monthly sum.
(2A) If any person (other than the Director of Social Welfare) who is the guardian
of a mentally incapacitated person placed under guardianship in pursuance of a
guardianship order—
(a) dies; or
(b) gives notice in writing to the Director of Social Welfare that he desires to re-
linquish the functions of guardian,
the guardianship of the mentally incapacitated person shall upon that death or the re-
ceipt of that notice, as the case may be, vest in the Director of Social Welfare.
(2B) If any such guardian, not having given notice under subsection (2A)(b), is incap-
acitated by illness or any other cause from performing the functions of guardian of the
mentally incapacitated person, those functions shall, during the guardian’s incapacity,
be performed on his behalf by the Director of Social Welfare.
(3) A guardianship order shall cease to be of any effect—
(a) upon the person subject to the order being discharged by the tribunal under
section 59E; or
(b) upon expiry of the validity period unless the court or magistrate renews the
order upon—
(i) an application made—
(A) not less than 3 months before such expiry; and
(B) at the instigation of the Director of Social Welfare; and
609
(ii) production of such evidence of the need for renewal as the court or
magistrate thinks fit;
(c) upon revocation of the order by the court or magistrate.
(3A) The court or magistrate may, upon an application under subsection (3)(b)(i)—
(a) renew the guardianship order;
(b) renew and vary the guardianship order and in the case of a variation which is
a transfer, may place the person subject to the order under the guardianship
of the Director of Social Welfare, or a person authorised by the Director of
Social Welfare,
for a validity period of not more than 3 years commencing on the date of the renewal of
the guardianship order.
(4) Where a person is placed under guardianship in pursuance of a guardianship
order, any previous guardianship order (including any guardianship order under Part
IVB) by which he was liable to be subject to guardianship shall cease to have effect.
(4A) Where a person placed under guardianship in pursuance of a guardianship order
becomes liable to be detained or is detained in a mental hospital or the Correctional
Services Department Psychiatric Centre the powers conferred on a guardian under sub-
section (1)(a), (b) and (c) in respect of the mentally incapacitated person shall be sus-
pended and remain suspended until the mentally incapacitated person is discharged.
(5) The Secretary for Health, Welfare and Food may, by notice in the Gazette, amend
subsection (3)(b)(i)(A) by substituting a different period or periods for any period spe-
cified in that subsection, either generally or to cover a particular case or class of case.
(6) It is hereby declared that a notice under subsection (5) is subsidiary legislation.
(7) Where a mentally incapacitated person who is for the time being subject to a
guardianship order under this Part absents himself without the permission or agree-
ment of the guardian from the place where he is required by the guardian to reside,
he may be taken into custody and returned to that place by the guardian or by the
Director of Social Welfare, and such reasonable force may be used as is necessary for
the purpose.
(8) For the purposes of this section – “monthly sum” – means a sum not exceeding
the latest median monthly employment earnings of employed persons, for the time
being, specified in the Quarterly Report on General Household Survey published by
the Census and Statistics Department; “vary” – in relation to a guardianship order, in-
cludes transfer.
Mental Health Ordinance (Cap 136), s 44D
Power of court or magistrate to make supervision and treatment order
5–473 44D.—(1) Subject to the other provisions of this Part, where—
(a) section 76(1) of the Criminal Procedure Ordinance (Cap 221) applies to a
person;
(b) the court or magistrate concerned is satisfied, on the written or oral evidence
of 2 or more registered medical practitioners (of whom not less than 2 shall
be psychiatrists on the Specialist Register established under section 6(3) of
the Medical Registration Ordinance (Cap 161)), that—
(i) the person is mentally incapacitated to a nature or degree which war-
rants his receiving supervision and treatment under this Part;
(ii) the mental incapacity is susceptible to treatment; and
(iii) it is necessary in the interests of the welfare of the person or for the
protection of other persons that the person should be so supervised
and treated; and
stances of the case, including—
(i) the nature of any act or omission by virtue of which the section referred
to in paragraph (a) applies to him;
(ii) the character and antecedents of the person;
(iii) the other available methods of dealing with him; and (iv) the advice of
the Director of Social Welfare on—
(A) the suitability of an order under this section in the case of the
person;
(B) where applicable, the availability of a suitable person acting under
the Director of Social Welfare’s authority under paragraph (i) if
there is an order under this section in the case of the person; and
610
(C) if there is an order in the case of the person, the arrangements
that will need to be made for the treatment intended to be speci-
fied in the order,
that the most suitable method of disposing of the case is by means of an
order under this section,
the court or magistrate may by an order (“supervision and treatment order”) require the
person (“supervised person”)—
(i) to be under the supervision of the Director of Social Welfare or any person
acting under his authority (“the supervising officer”) for a period specified in
the order of not more than 2 years commencing on the date of the order; and
(ii) to submit, during the whole or such part of that period as may be specified
in the order, to treatment by or under the direction of a registered medical
practitioner (or other appropriately qualified person) with a view to the im-
provement of his mental disorder.
(2) Section 45(3) shall apply to a supervision and treatment order as it applies to a
hospital order.
Mental Health Ordinance (Cap 136), s 44E
Restrictions on the making of a supervision and treatment order
44E.—(1) The court or magistrate shall not make a supervision and treatment order 5–474
unless the court or magistrate has considered a social inquiry report from the super-
vising officer.
(2) For the purpose of subsection (1), “social inquiry report” means a report—
(a) compiled by the supervising officer of the supervised person; and
(b) which includes an assessment of the family background, and social and fi-
nancial situation, of the supervised person.
Mental Health Ordinance (Cap 136), s 44F

Making of a supervision and treatment order and general requirements
44F.—(1) Before making a supervision and treatment order, the court or magistrate 5–475
shall explain to the supervised person the effect of the order.
(2) The supervised person shall keep in contact with the supervising officer in accord-
ance with such instructions as he may from time to time be given by that officer and shall
notify that officer of any change of address.
(3) For the purpose of executing the supervision and treatment order concerned, the
supervising officer shall have the power to convey the supervised person to a place or
places as specified in the order.
Mental Health Ordinance (Cap 136), s 44G
Obligatory requirements as to medical treatment
44G.—(1) A supervision and treatment order shall include a requirement that the 5–476
supervised person shall submit, during the whole or part of such period as specified in
the order, to treatment (which may include residential treatment in a hospital) by or
under the direction of a registered medical practitioner (or other appropriately quali-
fied person) with a view to the improvement of his mental incapacity.
(2) When the supervised person is under treatment as a residential patient in a mental
hospital, the supervision and treatment order shall be suspended until the supervised
person is discharged from that hospital.
Mental Health Ordinance (Cap 136), s 44H
Optional requirements as to residence
44H.—A supervision and treatment order may include requirements as to the resi- 5–477
dence of a supervised person and, where the supervised person is required to reside in an
institution, the period for which he is so required to reside shall be specified in the order.
Mental Health Ordinance (Cap 136), s 44I
Revocation and amendment of a supervision and treatment order
44I.—Where a supervision and treatment order is in force in respect of any supervised 5–478
person and, on the application of the supervised person, a relative of the supervised
person or the supervising officer, the court or magistrate is satisfied that—
611
(a) having regard to circumstances which have arisen since the order was made,
it would be in the interests of the health or welfare of the supervised person
that the order should be revoked, the court or magistrate, as the case may be,
may revoke the order;
(b) the supervised person has persistently refused to comply with the require-
ments as specified in the order, but the condition does not require compul-
sory admission to a mental hospital, the court or magistrate, as the case may
be, may revoke the order or vary the requirements of the order.
(2) Notes on hospital and guardianship orders

Appropriateness of hospital order
5–479 A hospital order may be made even though there is no causal connection be-
tween the offender’s disorder and the offence he has committed: R v McBride [1972]
Crim L R 322, CA. Whether or not the disorder is the root cause of the offence, the
law facilitates treatment of the offender in hospital if that is what his condition re-
quires: HKSAR v Chiu Yu To (CACC 104/2000, [2001] HKEC 803). If an order is made
it is for the protection of the public and in the interest of the offender: R v Chan Kin
(CACC 421/1989, [1990] HKLY 411). An order is only ever appropriate if there is evi-
dence of an actual mental disorder that requires treatment: R v Leung Tong Fat (CACC
8/1991, [1992] HKLY 315).
A hospital order may be made irrespective of whether the offender is tried on in-
dictment or before a court of summary jurisdiction. A court should assess the degree
of mental responsibility of the offender for the offence, and decide whether punish-
ment by imprisonment is still an option: R v Sun Chiu Loi [1996] HKLR 873.
An order without limit of time should be reserved for the more serious of-
fences: R v Lam Yuet Siu (CACC 238/1993, [1993] HKLY 388). Such an order may
be unavoidable if he is “without doubt gravely ill, and poses a threat to members
of the public”: HKSAR v Poon Suet Ming [2000] HKCU 1018 (CACC 265/2000).
If the offender poses a threat to the public, an indeterminable term may be un-
avoidable even though the maximum term of imprisonment for the offence is
great: R v Kwan Wai Man (CACC 483/1994). An indefinite order is appropriate
only when the doctors cannot with confidence predict when the offender will be
fit for release: R v Lung Fan Wa [1994] HKLY 414; HKSAR v Wan Pak-sing [2004]
3 HKC 283; HKSAR v Fan Wai Kong [2005] HKCU 142 (CACC 475/2004). If there
is no such uncertainty, the order should be for a finite term: R v Tsui Chung Leung
[1977-1979] HKC 419.
Although a court must have regard to the medical evidence before making an
order, the final decision on the issue rests with the court: R v Ha Kei Fuk [1996] HKCU
118 (CACC 688/1995). The ordinary rules of evidence apply in the determination
of whether a charge is proved before a hospital order can be made: R v Huang Chen
Sheng [1998] HKC 544. See also R v Tang Yau Chi [1988] 1 HKLR 416; R v Lee Yue Tung
(HCMA 612/1992).
Under section 45 of the Mental Health Ordinance (Cap 136), a hospital order
must be for an indeterminate or fixed term: R v Lam Chung San (CACC 93/2004, 14
September 2004).
Where a defendant is convicted of an offence and is proved to be suffering mental
disorder at the time of the offence, the judge should determine the most appro-
priate sentence from the options available (namely discharge, fine, suspended sen-
tence, imprisonment, etc.) by considering all relevant circumstances. These options
are, however, not available where a person suffering mental disorder is considered
to have committed criminal acts but is not convicted. In this situation, the judge can
only choose between imposing a hospital order under s 45 and ordering the person
to be bound over to keep the peace under section 109I of the Criminal Procedure
Ordinance, (Cap 221). In this connection, the judge should have regard to factors
such as the seriousness of the criminal acts, whether the person is prone to violence,
the degree of the mental disorder and whether the person knows his mown mental
disorder. Generally speaking, a hospital order is appropriate where the subject person
is prone to violence. There are fundamental differences between the court’s function
612
Sect. IX] Miscellaneous Matters § 5–485
under s 36 and that under s 45. The function under s 36 is an administrative function
confined to countersigning certificates issued by medical practitioners. The power to
impose a hospital order under s 45, on the other hand, is discretionary in nature, and
in exercising such discretion the court is performing a judicial function: HKSAR v Wo
Han [2005] 3 HKLRD 438.
Admission to hospital
A hospital order should not be made unless the court is satisfied that arrangements 5–480
have been made for the admission of the defendant within 28 days of the court’s
order: s 45(2).
Multiple offences
When a hospital order has been made, the court cannot impose a sentence of im- 5–481
prisonment, a fine or a probation order: s 45(3). In cases involving multiple offences
the making of a hospital order in respect of some offences and passing a sentence of
imprisonment in respect of others can only be justified in the most exceptional cir-
cumstances: HKSAR v Lee Siu Tai [2002] 1 HKLRD 425.
Section 34 of the Protection of Children and Juveniles Ordinance (Cap 213) con-
fers upon magistrates a wide discretion. The objective of the section is to protect chil-
dren, not to punish them: HKSAR v Chan Hoi Ying [2004] 3 HKLRD 128.
IX. MISCELLANEOUS MATTERS
A. Sentence of Death
The death penalty remained on Hong Kong’s statute book until its abolition in 5–482
1993. In 1966, a year after its total abolition in the United Kingdom, the death penalty
for murder was carried out in the territory for the last time. In the 20 years leading up
to the abolition, the Governor commuted the sentence of death to one of life impris-
onment or to a determinate period of imprisonment.
B. Pardon
(1) Legislation
Power to grant conditional pardon

115.—A magistrate or the court may, with the consent in writing of the Secretary 5–483
for Justice, order that a pardon be granted to any person accused or suspected of, or
committed for trial for any indictable offence, on condition of his giving full and true
evidence on any preliminary inquiry or any trial; and such order shall have effect as a
pardon by the Chief Executive, but may be withdrawn by the magistrate or the court on
proof that such person has withheld evidence or given false evidence.
Effect of pardon
116.—In every case where either a free or conditional pardon is granted to any person, 5–484
the discharge of the offender in the case of a free pardon, and the performance of the
condition, in the case of a conditional pardon, shall have the same effect as a pardon has
in the like cases under the public seal.
Recording of pardon
117.—(1) Whenever the Chief Executive is pleased to grant to any offender a pardon 5–485
under the public seal, the Registrar shall be bound, on the direction of the Chief
Executive, to record such pardon in the book to be kept by him for that purpose and to
endorse such pardon with the word “Recorded” and with his signature.
613
(2) Every such pardon shall be valid and effectual for all purposes whatsoever, and it
shall be the duty of all courts, judges, magistrates, officers, and others, on production
thereof, to take notice of and to give effect to the same.
Saving of prerogative of mercy
5–486 118.—Subject as hereinbefore provided, nothing in this Ordinance shall affect the
power vested in the Chief Executive to pardon offences or commute penalties.
C. Solitary Confinement
Court’s discretion to discount sentence to be served in harsh

conditions
5–487 The revised UN Standard Minimum Rules for the Treatment of Prisoners (“the
Mandela Rules”), were adopted by the UN General Assembly on 17 December 2015.
Rules 43, 44 and 45 define solitary confinement and prolonged solitary confinement,
and provide that solitary confinement “shall be used only in exceptional cases as a last
resort, for as short a time as possible and subject to independent review, and pursuant
only to the authorization by a competent authority”. Substantial reasons are required
to justify a prisoner’s isolation: Sanchez v France [2006] ECHR 59450/00. Whether a
detention infringes human rights depends on its circumstances: Ahmad v UK (2013)
56 EHRR 1. If a prisoner has reasonable access to others and has to be isolated for his
own protection, his segregation may be justifiable: Sahid v Scottish Ministers (Scotland)
[2015] UKSC 58.
The fact that the defendant is likely to spend his detention in solitary confinement can
be taken into account by the sentencing court: R v Heung Chi Keung [1991] 1 HKLR 353.
Those defendants who have put themselves at risk by assisting the authorities
to catch or convict other offenders are often placed in segregation for their own
protection. Because of the benefit to the public of such offenders assisting the
police, the courts have recognised the hardship involved in serving their sen-
tences in confined conditions: see HKSAR v Chun Yeung [1998] 1 HKLRD 343
where the court took this into consideration when passing sentence. However,
in R v Chan Hei Kam [1995] 2 HKCLR 205, the court pointed out that there were
special facilities at Siu Lam Psychiatric Centre for the protection of informers.
The courts have been reluctant to show leniency to a defendant who could be
said to have created his own predicament; such as a sex offender or a convicted
police officer: see R v Yung Man Chun (CACC 149/1994); R v Yu Tai Wing [1995]
2 HKCLR 119.
There are other reasons why the court’s discretion to reduce sentence is seldom
used: if the offence is such that the court cannot give leniency on the grounds the
defendant will suffer deprivation when serving his sentence; the fact that the de-
fendant should have realised the consequences of his crime before offending and
the Correctional Services Department might be able to mitigate the harshness of
segregation.
In HKSAR v Yeung Kwai Kuen [2002] 3 HKLRD 91, the Court of Appeal was asked to
take into account in an appeal against sentence the fact that the defendant had had to
be placed in solitary confinement for his own protection after he was twice assaulted
inside the prison, but it decided that isolation would not, generally, be a matter to
which it would have regard. Only case-specific and unusual circumstances, for ex-
ample, prisoners who were informers, would require action by the courts rather than
by the executive; applying R v Nall-Cain [1998] 2 Cr App R (S) 145; and following R v
Chan Wai Keung [1995] 1 HKCLR 123. In HKSAR v Tse Ka Wah [1998] 1 HKLRD 925,
the Court of Appeal allowed an appeal against sentence because of a failure by counsel
and the trial judge to follow the correct procedure and which resulted in it becoming
public knowledge that the defendant had assisted the police. The defendant therefore
had to be put in solitary confinement for his own protection. The court reduced his
four year sentence to three years.
614
Sect. X] Criminal Bankruptcy § 5–490
D. Review of Sentence
The Secretary for Justice may, with the leave of the Court of Appeal, apply to the 5–488
Court of Appeal for the review of any sentence (other than a sentence which is fixed
by law) passed by any court, other than the Court of Appeal, on the grounds that the
sentence is not authorized by law, is wrong in principle or is manifestly excessive or
manifestly inadequate.
The legislative scheme which regulates a review of sentence is contained in the
Criminal Procedure Ordinance (Cap 221), s 81A.
The scope of the power to review a sentence, the procedures to be followed, and
the factors for consideration when an application for review is determined, are con-
sidered in Chapter 7, Criminal Appeal, at paragraphs 7-146 (qv).
(See also Cross & Cheung’s Sentencing in Hong Kong (8th Ed., LexisNexis), Chapter 41).
X. CRIMINAL BANKRUPTCY
Summary
A criminal bankruptcy order can be made where loss or damage exceeds $150,000. 5–489
A judge must first decide whether he has jurisdiction to make an order and, then,
whether to make it: R v Downing (1980) 71 Cr App R 316. An order gives injured par-
ties “a comprehensive and far-reaching means of obtaining satisfaction”: R v Michel
[1984] 6 Cr App R (S) 379.
(1) Legislation
Criminal bankruptcy orders against convicted persons

84A.—(1) Where a person is convicted of an offence before the court and it appears 5–490
to the court that—
(a) as a result of the offence or of that offence taken together with any other
relevant offences, loss or damage (not attributable to personal injury)
has been suffered by one or more persons whose identity is know to the
court; and
(b) the amount, or aggregate amount, of the loss or damage exceeds $150,000,
the court may, in addition to dealing with the offender in any other way (but
not if it makes a compensation order against him under section 73), make an
order, to be called a criminal bankruptcy order, against him in respect of the
offence or, as the case may be, that offence and any other relevant offences;
(2) In subsection (1) “relevant offences” means offences—
(a) of which the person in question is convicted in the same proceedings;
(b) which the court takes into consideration in determining its sentence; or
(c) whether or not they are specifically charged or admitted, a judge of the court
is satisfied are proved by the evidence adduced by the prosecution in the
same proceedings.
(3) A criminal bankruptcy order shall specify—
(a) the amount of the loss or damage appearing to the court to have resulted
from the offence, or if more than one, the total amount appearing to have
resulted from all the offences;
(b) the person or persons appearing to the court to have suffered that loss or
damage;
(c) the amount of that loss or damage which it appears to the court that person,
or each of those persons, has suffered; and
(d) the date which appears to the court to be the earliest date on which the of-
fence or, if more than one, the earliest of the offences was committed.
(4) A criminal bankruptcy order may be made against 2 or more offenders in respect
of the same loss or damage.
(5) The Chief Executive in Council may by order amend subsection (1)(b) by substi-
tuting, for the amount specified therein, such amount as may be specified in the order.
(6) In this section “court” includes the District Court.
615
Criminal Procedure Ordinance (Cap 221), s 84B
Section 84B Appeals in the case of criminal bankruptcy orders
5–491 (1) No appeal shall lie against the making of a criminal bankruptcy order.
(2) Where a person successfully appeals to the Court of Appeal against this convic-
tion of an offence by virtue of which such an order was made, the Court of Appeal shall
rescind the order unless he was convicted in the same proceedings of another offence
of which he remains convicted and a criminal bankruptcy order could have been made
without reference to loss or damage caused by the first-mentioned offence; and where,
accordingly, the Court of Appeal does not rescind the order it shall amend it by striking
out so much of it as relates to loss or damage caused by the offence in respect of which
the conviction is quashed.
(3) Where on an appeal by a person against his conviction of an offence by virtue of
which a criminal bankruptcy order was made the Court of Appeal substitutes a verdict of
guilty of another offence, the Court of Appeal shall—
(a) rescind the order if a criminal bankruptcy order could not have been
made against that person if he had originally been convicted of that other
offence;
(b) in any other case, amend the order so far as may be required in consequence
of the substitution of a verdict of guilty of the other offence.
(4) Where the Court of Appeal rescinds or amends a criminal bankruptcy order, the
rescission or amendment shall not take effect—
(a) in any case until the expiration of 14 days from the date of the decision of the
Court of Appeal;
(b) if within that period an application is made for leave to appeal to the Court
of Final Appeal against the Court of Appeal’s decision on the appeal against
conviction, so long as the appeal is pending; and
(c) if on such an appeal the conviction is restored by the Court of Final Appeal.
(5) For the purposes of subsection (4) an appeal to the Court of Final Appeal shall
be treated as pending until any application for leave to appeal is disposed of and, if
leave to appeal is granted, until the appeal is disposed of; and if no application for
leave to appeal is made before the expiration of 14 days from the date of the decision
of the Court of Appeal, the rescission or amendment shall take effect at the end of
that time.
(2) Notes
General
5–492 Section 84A(1) provides that an order may be made if it “appears to the court”
that the loss or damage results from the offence: see Secretary for Justice v Chan Yin
Ming [1999] 2 HKC 493; R v Cain [1985] 1 AC 46. Commonsense must be applied
in deciding if losses result from the offence: R v Cannon and James [1986] 82 Cr App
R 286. Nor is it necessary to import into the criminal law the concepts of causation
which apply under the law of contract and tort: Thomson Holidays Ltd [1973] 58 Cr
App R 429.
The court must be satisfied first that the defendant is guilty of an offence. Whether
the loss was the result of the offence can then be considered as part of the sentencing
process. A judge should indicate he is thinking of imposing such an order so counsel
can make submissions in mitigation or call evidence. If no such submissions are made,
the court is entitled to assume the defendant has accepted the probability and correct-
ness of an order: R v Mayer [1984] Crim L R 633.
There is no jurisdiction for a magistrate to make a criminal bankruptcy order.
The trigger point of $150,000 is also reached if the monetary loss to individual
victims in several indictments exceeds that amount: R v Riley (1988) 87 Cr App R 125.
A bankruptcy order can be made for a conspiracy offence if consequential
damage is established: R v Fung To Shan (CACC 384/1986, [1990] HKEC 96) – ie
if the acts which the conspirators agree on are ones which are liable to cause loss
to someone, and if those acts are done, any loss or damage suffered as a result of
those acts is loss or damage as a result of the conspiracy. Not every offence ought
to attract a criminal bankruptcy order: R v Sisodia (1979) 1 Cr App R (S) 291, CA.
616
Sect. XI] Enhancement of Sentences § 5–498
Relevant offences
Under section 84A(2)(b), the court can take into account offences that are not 5–493
charged, with the consent of the defendant. If the aggregate figure of the loss or
damage on the substantive offences and the offences taken into consideration exceeds
$150,000, then a criminal bankruptcy order can be made.
Under subsection (2)(c) the definition of “relevant offence” is extended to of-
fences neither charged nor admitted. It is no longer the case that the court can act
on evidence adduced at trial of other offences not charged and not admitted by the
defendant: R v Chow Tat Ming [1997] HKLRD 353.
Other orders
Under section 84A(1)(b) a criminal bankruptcy order cannot be coupled with a com- 5–494
pensation order, but a defendant can be sentenced in any other way. For instance, it can
run concurrently with a restitution order: R v Tsui Fung (No 2) [1996] 2 HKCLR 72, CA.
However in R v Michel 6 Cr App R (S) 379 it was said that cases where it was appropriate
to make a criminal bankruptcy order as well as fining a defendant were likely to be infre-
quent and in R v Garner (1987) 7 Cr App R (S) 285, it was held that a fine should never be
imposed unless it was clear that after the fine had been paid there would be ample funds
to satisfy the creditor; see also R v Hill [1982] 4 Cr App R (S) 319.
Effect of order
The order does not of itself render the accused bankrupt. The order provides con- 5–495
clusive proof of an act of bankruptcy upon which a criminal bankruptcy petition can
be based without proof of insolvency. Upon the defendant’s adjudication the Officer
Receiver becomes his trustee and all property vests in him: R v Michel (1984) 6 Cr App
R (S) 379.
Appeal
Under section 84B(1) there is no appeal against a criminal bankruptcy order. 5–496
However, under subsection (2), if a defendant succeeds on appeal against convic-
tion of an offence for which an order was made, the Court of Appeal will rescind
the order.
But if the sentencing judge has exceeded his powers when making the order, there
is a right to appeal: see R v Tucker [1974] 1 WLR 615; R v Cain [1985] 1 AC 46; R v
Maidstone Crown Court, Ex p Harrow London Borough Council [2000] QB 719.
XI. ENHANCEMENT OF SENTENCES
A. Organized and Serious Crimes Ordinance

General
The legislature now requires courts to consider imposing enhanced sentences in 5–497
certain circumstances. If a judge decides a specified offence in an organized crime,
then section 27 of the Organized and Serious Crimes Ordinance must be considered.
(1) Legislation
Organized and Serious Crimes Ordinance (Cap 455), s 27

(1) This section applies where, in proceedings in the District Court or the Court of 5–498
First Instance, a person has been convicted of a specified offence.
(2) The prosecution may furnish information to the court regarding any or all of the
following—
(a) the nature and extent of any harm caused, directly or indirectly, to any
person by the act in respect of which the person has been so convicted;
617
(b) the nature and extent of any benefit, whether financial or otherwise, that
accrued or was intended to accrue, directly or indirectly, to that or any other
person from that act;
(c) the prevalence of that specified offence;
(d) the nature and extent of any harm, whether direct or indirect, caused to the
community by recent occurrences of that specified offence;
(e) the nature and extent of the total benefit, whether financial or otherwise,
accruing directly or indirectly to any person from recent occurrences of that
specified offence.
subsection (2).
(4) If the prosecution so requests, the court shall determine whether the evi-
dence adduced at the trial or, if the conviction followed a plea of guilty, the matters
accepted by the court prior to conviction show that the specified offence was an
organized crime.
(5) The prosecution shall not request a determination under subsection (4) unless it
has given notice to the person of its intention to seek such a determination, and unless
such notice has been given prior to the plea last entered by the person or within such
further time as may have been allowed by the court under subsection (6).
(6) If a person has pleaded guilty to a specified offence and it appears to the court,
having regard to the time at which the prosecution was informed of the accused’s
intention to plead guilty, that it would be in the interests of justice to allow the pros-
ecution further time within which to give the notice provided for in subsection (5),
the court may order accordingly and may specify such period for that purpose as
it considers reasonable in the circumstances, and if notice is given pursuant to an
order under this subsection the court may allow the accused to withdraw his plea of
guilty.
(7) The court shall not make a determination under subsection (4) that a specified
offence was an organized crime unless, subsequent to his receipt of the notice required
to be given under subsection (5), the person convicted has been given an opportunity
to be heard on the matter.
(8) If in making a determination under subsection (4) the court determines that the
specified offence was an organized crime by reason of its connection with the activities
of a particular triad society, the prosecution may furnish information to the court re-
garding the nature and extent of those activities and the way in which the offence was
connected with those activities.
(9) The court may receive and take into account regarding a matter referred to in
subsection (8) any information which it considers reliable in the circumstances.
(10) Where the prosecution seeks to furnish information to a court under this section
regarding any matter referred to in subsection (2) or (8), the court shall allow the
person convicted an opportunity to object to the reception of the information, and
where any such information is received by the court the court shall allow the person an
opportunity to furnish information regarding that same matter.
(11) Subject to subsections (12) and (13), where a court is satisfied beyond
reasonable doubt—
(a) that the specified offence was an organized crime; or
(b) as to any information furnished under subsection (2) or (8),
or where any such matter is agreed by the person convicted, the court shall have re-
gard to such matter when it passes a sentence on the person for the relevant specified of-
fence and may, if it thinks fit, pass a sentence on the person for that offence that is more
severe than the sentence it would, in the absence of such matter, have passed.
(12) If an application has been made for a confiscation order under section 8, the
court shall not have regard for the purpose of subsection (11) to any proceeds of a spe-
cified offence or organized crime to which the application for the confiscation order
relates.
(13) A sentence passed pursuant to subsection (11) shall not exceed the maximum
penalty permitted by law for the offence.
(14) This section operates without prejudice to any other information that may be
(15) This section does not apply to a person who is convicted of a specified offence
618
Organized and Serious Crimes Ordinance (Cap 455), s 2
“Organized crime” – means a Schedule 1 offence that— 5–499
(a) is connected with the activities of a particular triad society;
(b) is related to the activities of 2 or more persons associated together solely
or partly for the purpose of committing 2 or more acts, each of which is a
Schedule 1 offence and involves substantial planning and organization; or
(c) is committed by 2 or more persons, involves substantial planning and organ-
ization and involves—
(i) loss of the life of any person, or a substantial risk of such a loss;
(ii) serious bodily or psychological harm to any person, or a substantial risk
of such harm; or
(iii) serious loss of liberty of any person.
(2) Notes on enhanced sentences under Organized

and Serious Crimes Ordinance
Guidelines
In HKSAR v Wong Fung Ming (CACC 515/2001, [2002] HKEC 1504), the power to 5–500
enhance sentence was described as “extraordinary”, and one “to be utilised sparingly”.
In HKSAR v Li Lin Keung [2012] 4 HKLRD 135, the enhancement of sentence was
called “an exceptional measure” to be used sparingly in cases when a sentence con-
taining a greater level of deterrence is required.
Guidelines for judges considering enhanced sentences were laid down in HKSAR v
Tam Wai Pio [1998] 2 HKLRD 949.
The judge should consider, determine and set out clearly:
(1) (a) the appropriate starting point having regard to the part played by the
accused, and
(b) the sentence that the court would have imposed taking into account the
mitigation and totality.
(2) Whether the specified offence is an organized crime within the meaning of
section 2 of the Ordinance: HKSAR v Padilla Gerado Gonzaga (CACC 275/2011, [2011]
HKEC 1604), [13].
(3) Whether the crime calls for an enhancement of sentence under the terms of
section 27(11) having regard to the information supplied by the prosecution to the
court under section 27(2)(a)–(e) or section 27(8) or the general nature of the
organized crime itself. (If enhancement is called for, the percentage is increased by way
of enhancement of sentence).
In Tam Wai Pio (above) the court held that enhancement by 50 per cent for import-
ing an unmanifested cargo of cigarettes contrary to section 18(1)(a) of the Import
and Export Ordinance could not be criticised. The court said there were some of-
fences, such as those involving drugs and prostitution, which could attract percentage
increases even higher than 50 per cent. In HKSAR v Cheung Wai Man [1998] 4 HKC
290, CA, the court also mentioned crimes such as the use of force to recover money
lent at excessive interest rates to gamblers and vehicle smuggling warranted enhanced
sentences of over 50 per cent.
Where there was evidence showing that an offence had the tendency of increas-
ing rapidly to the extent of becoming prevalent, a 50 per cent enhancement under
section 27 was probably not justified without some forewarning by the courts: HKSAR
v Cheng King Lung [2002] 4 HKC 67. There is no “usual” percentage by which a sen-
tence for a prevalent offence should necessarily be increased, and the focus must
remain on the “global picture presented by the facts of the case”: HKSAR v Yip Kwok
Fai [2002] HKLRD (Yrbk) 318. It is appropriate to enhance sentence by one-third pur-
suant to the Organized and Serious Crimes Ordinance, Chapter 455 when the offence
is prevalent: HKSAR v Wong Kai Chun [2005] 2 HKLRD 546; HKSAR v Ngo Van Huy
[2005] 2 HKLRD 1. Street deceptions have been found to be prevalent, and deserving
of an enhancement of 50 per cent: HKSAR v Ma Suet Chun [2001] 4 HKC 337.
There are no guidelines for sentencing offences which warrant enhancement of
sentence because the circumstances of each case may vary almost infinitely: HKSAR v
Wong Ka Ling [2004] 3 HKC 600.
619
As to the enhancement of the sentence under s 27 of the Organized and Serious
Crimes Ordinance, (Cap 455), the judge is entitled to look at crime trends, not just
at numbers of prosecutions: HKSAR v Lam Wai Yip (CACC 64/2005, HKEC 1563).
The power of enhancement should be exercised with restraint and in light of sen-
tencing guidelines, for otherwise “the severity of sentences in criminal cases would go
on increasing”: HKSAR v Chan Cheong Kit [2010] 2 HKLRD 641, per Yeung JA.
Scope of application
5–501 In HKSAR v Ma Suet Chun [2001] 4 HKC 337, the Court of Appeal, applying
R v Smith (Patrick) (1988) 87 Cr App R 393 and R v Gardiner (1982) 68 CCC (2d)
477, held that when considering whether to pass a more severe sentence or not,
the court was not restricted to organized crimes. It might also decide upon the
information furnished by the prosecution; the admissibility of which was not re-
stricted by the rules of criminal evidence. The most important thing was that the
evidence that the court received was reliable and credible. HKSAR v Ma Suet-chun
concerned street deception, tonic medicine fraud, and the court held that a de-
terrent sentence for these kinds of deception cases was warranted as they were
becoming prevalent and enhancement of the sentence by 50 per cent could deter
the commission of such crimes. However, as prior to this case there was no prece-
dent to indicate that the sentence would be enhanced it held that imposing such
enhancement without prior warning might lead to a sense of unfairness. For this
case, the sentence of two years’ imprisonment would be enhanced by 25 per cent.
This case was followed in HKSAR v Chu Sau Chi [2002] HKLRD (Yrbk) 313 and
HKSAR v Chan Cheong Kit [2010] 2 HKLRD 641.
In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal considered the
problem posed by the prevalence of theft by pickpocketing. It indicated that the first
step in the sentencing process was to fix a starting point. The second step was to in-
crease that figure because of the defendant’s appalling criminal record and the ag-
gravating factor constituted by the commission of the offence in a crowded area. The
third step was then to discount the sentence by a third to reflect the guilty plea. Finally,
the enhancement of sentence by one-third was appropriate under the Organized and
Serious Crimes Ordinance, because of the evidence which showed an alarming in-
crease in pickpocketing offences.
In HKSAR v Chan Cheong Kit [2010] 2 HKLRD 641, the Court of Appeal held that
where the starting point adopted for the offence of making infringing copies was al-
ready high, it was sufficient to enhance the sentence under the Organized and Serious
Crimes Ordinance by one-third instead of 50%. No matter how abhorrent or serious
the facts of a particular case were, the court should exercise restraint in sentencing
and follow guidelines. Otherwise, the severity of sentences would go on increasing and
there would be inconsistencies in sentencing.
B. Enhanced Sentences under Other Ordinances

Dangerous Drugs Ordinance (Cap 134), s 56A

5–502 56A.—(1) Subject to subsection (5), where a person (other than a minor) has been
convicted of a specified offence and—
(a) a court is satisfied beyond reasonable doubt as to any information furnished
under subsection (2); or
(b) any such information is agreed by the person,
then the court—
(i) shall have regard to such information when it passes a sentence on the
person for the offence; and
(ii) may, if it thinks fit, pass a sentence on the person for that offence that is more
severe than the sentence it would, in the absence of such information, have
passed.
(2) Information which may be furnished to a court under this subsection is any infor-
mation which proves that the commission of the relevant specified offence involved a
620
minor and, without limiting the generality of the foregoing, the information may relate
to any of the following—
(a) the procuring, supplying or trafficking by whatever means of a dangerous
drug for or to a minor for possession or otherwise by a person;
(b) a person obtaining by whatever means a dangerous drug from a minor;
(c) provision by a person to a minor of any pipe, equipment or apparatus fit and in-
tended for the smoking, inhalation, ingestion or injection of a dangerous drug;
(d) a person intentionally or unintentionally employing, hiring, using, per-
suading, enticing, or coercing a minor in the commission of a specified of-
fence or the avoidance of detection or apprehension of such and offence;
(e) use of a minor in assisting the operation or management of premises which
are used as a divan or for unlawful trafficking, manufacturing, or storage of
a dangerous drug.
sub-section (2).
(4) Where the prosecution seeks to furnish information to a court under subsec-
tion (2), the court shall allow the person convicted of the relevant specified offence an
opportunity to—
(a) object to the reception of the information; and
(b) where such information is received by the court, furnish other information
regarding that first-mentioned information.
(5) A sentence passed pursuant to subsection (1) shall not exceed the maximum pen-
alty permitted by law for the relevant specified offence.
(6) This section shall operate without prejudice to any other information that may be
(7) The power of a court to pass a more severe sentence under subsection (1) shall
extend to—
(a) conspiracy to commit;
(b) inciting another to commit;
(c) attempting to commit; and
(d) aiding, abetting, counselling or procuring the commission of, a specified
offence.
(8) This section shall not apply to a person who is convicted of a specified offence
(9) In this section – “court” – includes a magistrate; “specified offence” – means any
offence under sections 4, 4A, 5, 6, 8, 9, 35, 36 or 37.
Notes
In 1997, the legislature enacted this section to deter drug traffickers and dealers from 5–503
using young persons. If the court is satisfied that the defendant committed a relevant
offence using a minor, it may (and the matter is discretionary) pass a more severe sen-
tence: section 56A(1)(b)(ii). The involvement of a minor is “a material circumstance of
aggravation”: HKSAR v Lam Kam Kwong [2002] 1 HKC 541. A substantial enhancement
may be appropriate: HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621, [2007] 1 HKC 462.
Massage Establishments Ordinance (Cap 266), s 4
Prohibition on operating etc massage establishment without a licence
4.—(1) Any person who on any occasion operates, keeps, manages, assists in any cap- 5–504
acity in the operation of, or assists in the management of, a massage establishment for
the operation of which a licence is not in force commits an offence.
(2) For the avoidance of doubt it is hereby declared that it shall not be a defence that
a person charged with an offence under subsection (1) did not know that the operation
of the massage establishment which is the subject of the offence was not licensed.
(3) Any person who commits an offence under subsection (1) shall subject to subsec-
tion (4) be liable—
(b) on a second or subsequent conviction to a fine of $100,000 and to imprison-
ment for 2 years.
621
Gambling in a gambling establishment
5–505 6.—Any person who gambles in a gambling establishment commits an offence and
is liable—
(b) on second conviction to a fine of $20,000 and to imprisonment for 6 months;
(c) on third or subsequent conviction to a fine of $30,000 and to imprisonment
for 9 months.
Firearms and Ammunition Ordinance (Cap 238), s 20

Possession of an imitation firearm
5–506 20.—(1) Subject to subsections (2) and (3), any person who is in possession of an imi-
tation firearm commits an offence and is liable to imprisonment for 2 years.
(2) Any person who, within 10 years of being convicted of an offence specified in the
Schedule or of an offence under this Ordinance, commits an offence under subsection
(1) is liable to imprisonment for 7 years.
(3) A person does not commit an offence under subsection (1) if he satisfies the
magistrate that—
(a) at the relevant time he was under the age of 15; or
(b) he was in possession of the imitation firearm in his capacity as a person who
deals in imitation firearms by way of trade or business, or as a servant of such
a person carrying out his bona fide and lawful instructions; or
(c) he was not in possession of the imitation firearm for a purpose dangerous to
the public peace, or of committing an offence, or in circumstances likely to
lead to—
(i) the commission of an offence; or
(ii) the possession of the imitation firearm for a purpose dangerous to the
public peace,
by himself or any other person.
(4) No prosecution for an offence under subsection (1) shall be instituted without the
consent of the Secretary for Justice but this subsection shall not prevent the arrest, or the
issue of a warrant for the arrest, of a person for any such offence.
XII. NATIONAL SECURITY LAW

5–507 The Law of the People’s Republic of China on Safeguarding National Security in
the Hong Kong Special Administrative Region of the People’s Republic of China
(National Security Law) was placed in Annex III of the Basic Law on 30 June 2020,
and, pursuant to Article 18(2) of the Basic Law, promulgated the same day. Its offence
provisions are considered in Chapter 26 (National Security Offences) of this text.
It introduces significant changes to sentencing law, including minimum sentences,
which rise, within successive sentencing bands, according to the culpability of the
defendant.
Secession
5–508 Article 20 proscribes secession, and stipulates:
A person who is a principal offender or a person who commits an offence of a grave
nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less
than ten years; a person who actively participates in the offence shall be sentenced to
fixed-term imprisonment of not less than three years but not more than ten years; and
other participants shall be sentenced to fixed-term imprisonment of not more than
three years, short-term detention or restriction.
5–509 Article 21 proscribes related secessionist activity, including preparatory acts, and
stipulates:
A person who incites, assists in, abets or provides pecuniary or other financial as-
sistance or property for the commission by other persons of the offence under Article
20 of this Law shall be guilty of an offence. If the circumstances of the offence com-
mitted by a person are of a serious nature, the person shall be sentenced to fixed-term
622
Sect. XII] National Security Law § 5–515
imprisonment of not less than five years but not more than ten years; if the circum-
stances of the offence committed by a person are of a minor nature, the person shall
be sentenced to fixed-term imprisonment of not more than five years, short-term de-
tention or restriction.
Subversion
Article 22 proscribes subversion, and stipulates: 5–510
A person who is a principal offender or a person who commits an offence of a grave
nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less
than ten years; a person who actively participates in the offence shall be sentenced to
fixed-term imprisonment of not less than three years but not more than ten years; and
other participants shall be sentenced to fixed-term imprisonment of not more than
three years, short-term detention or restriction.
Article 23 proscribes related subversive activity, including preparatory acts, and 5–511
stipulates:
If the circumstances of the offence committed by a person are of a serious na-
ture, the person shall be sentenced to fixed-term imprisonment of not less than five
years but not more than ten years; if the circumstances of the offence committed by a
person are of a minor nature, the person shall be sentenced to fixed-term imprison-
ment of not more than five years, short-term detention or restriction.
Terrorist Activities
Article 24 proscribes terrorist activities, and stipulates: 5–512
A person who commits the offence causing serious bodily harm, death or significant
loss of public or private property shall be sentenced to life imprisonment or fixed-
term imprisonment of not less than ten years; in other circumstances, a person who
commits the offence shall be sentenced to fixed-term imprisonment of not less than
three years but not more than ten years.
Article 25 proscribes organisational activities related to terrorism, and stipulates: 5–513
A person who organises or takes charge of a terrorist organisation shall be guilty of
an offence and shall be sentenced to life imprisonment or fixed-term imprisonment
of not less than ten years, and shall be subject to confiscation of property; a person
who actively participates in a terrorist organisation shall be sentenced to fixed-term
imprisonment of not less than three years but not more than ten years and shall be
imposed with a criminal fine; and other participants shall be sentenced to fixed-term
imprisonment of not more than three years, short-term detention or restriction, and
shall be liable to a criminal fine.
Article 26 proscribes all types of assistance to a terrorist organisation or a terrorist, 5–514
and stipulates:
A person who provides support, assistance or facility such as training, weapons, informa-
tion, funds, supplies, labour, transport, technologies or venues to a terrorist organisation
or a terrorist, or for the commission of a terrorist activity; or manufactures or illegally pos-
sesses substances such as explosive, poisonous or radioactive substances and pathogens
of infectious diseases or uses other means to prepare for the commission of a terrorist
activity, shall be guilty of an offence. If the circumstances of the offence committed by a
person are of a serious nature, the person shall be sentenced to fixed-term imprisonment
of not less than five years but not more than ten years, and shall be imposed with a crim-
inal fine or subject to confiscation of property; in other circumstances, a person shall be
sentenced to fixed-term imprisonment of not more than five years, short-term detention
or restriction, and shall be imposed with a criminal fine.
If the act referred to in the preceding paragraph also constitutes other offences,
the person who commits the act shall be convicted and sentenced for the offence that
carries a more severe penalty.
Article 27 proscribes terrorist advocacy or incitement, and stipulates: 5–515
If the circumstances of the offence committed by a person are of a serious nature,
the person shall be sentenced to fixed-term imprisonment of not less than five years
but not more than ten years, and shall be imposed with a criminal fine or subject
to confiscation of property; in other circumstances, a person shall be sentenced to
623
fixed-term imprisonment of not more than five years, short-term detention or restric-
tion, and shall be imposed with a criminal fine.
Collusion with a foreign country or with external elements to endanger national
security
5–516 Article 29 proscribes a wide range of activities designed to harm national security in
conjunction foreign countries and institutions, and stipulates:
A person who commits the offence shall be sentenced to fixed-term imprisonment
of not less than three years but not more than ten years; a person who commits an
offence of a grave nature shall be sentenced to life imprisonment or fixed-term impris-
onment of not less than ten years.
Other penalty provisions

5–517 Article 31 concerns companies and organisations, and stipulates:
An incorporated or unincorporated body such as a company or an organisation
which commits an offence under this Law shall be imposed with a criminal fine.
The operation of an incorporated or unincorporated body such as a company or
an organisation shall be suspended or its licence or business permit shall be revoked if
the body has been punished for committing an offence under this Law.
5–518 Article 33 identifies factors which may mitigate sentence, and stipulates:
A lighter penalty may be imposed, or the penalty may be reduced, or, in the case of
a minor offence, exempted, if an offender, criminal suspect, or defendant:
(1) in the process of committing an offence, voluntarily discontinues the commission
of the offence or voluntarily and effectively forestalls its consequences;
(2) voluntarily surrenders himself or herself and gives a truthful account of the
offence; or
(3) reports on the offence committed by other persons, which is verified to be true, or
provides material information which assists in solving another criminal case.
Sub-paragraph (2) of the preceding paragraph shall apply to a criminal suspect or
defendant who is subjected to mandatory measures and provides a truthful account of
other offences committed by him or her under this Law which are unknown to the law
enforcement or judicial authorities.
5–519 Article 34 provides that a person who is not a permanent resident may be deported
“as the sole or additional punishment if he or she commits an offence under this
Law”, and that such a person may be deported for contravention of the Law even if
not prosecuted.
5–520 Article 35 concerns the impact of a conviction for endangering national security
upon electoral eligibility, and provides:
A person who is convicted of an offence endangering national security by a court
shall be disqualified from standing as a candidate in the elections of the Legislative
Council and district councils of the Hong Kong Special Administrative Region, holding
any public office in the Region, or serving as a member of the Election Committee for
electing the Chief Executive. If a person so convicted is a member of the Legislative
Council, a government official, a public servant, a member of the Executive Council, a
judge or a judicial officer, or a member of the district councils, who has taken an oath or
made a declaration to uphold the Basic Law of the Hong Kong Special Administrative
Region of the People’s Republic of China and swear allegiance to the Hong Kong
Special Administrative Region of the People’s Republic of China, he or she shall be re-
moved from his or her office upon conviction, and shall be disqualified from standing
for the aforementioned elections or from holding any of the aforementioned posts.
The disqualification and removal from offices referred to in the preceding para-
graph shall be announced by the authorities responsible for organising and managing
the relevant elections or for the appointment and removal of holders of public office.
Notes
5–521 Although mandatory minimum sentences are not uncommon in other common
law jurisdictions, they are rare in this one. Whereas offence provisions always indi-
cate the maximum sentence, the courts, with very few exceptions, have enjoyed a
wide discretion as to the actual sentence to be imposed, and this will now, given the
624
Sect. XIII] Cases on Quantum § 5–525
stipulated minimum terms, be somewhat circumscribed in national security cases.
However, in HKSAR v Tong Ying Kit [2020] HKCFI 2133, the High Court (Chow
and Alex Lee JJ) rejected a submission that mandatory terms of imprisonment neu-
tralised the exercise of independent judicial discretion. It held that Articles 20,
21 and 24 did not “impermissibly interfere with the exercise of judicial powers in
the HKSAR in relation to the sentencing of persons charged with and convicted
of offences under those articles” [67]. It was, therefore, not “objectionable for the
legislature to prescribe a fixed punishment (eg life imprisonment in the case of
murder in the HKSAR), or a range of sentences (including a maximum and min-
imum sentence) for any particular offence, leaving it to the judge to determine an
appropriate sentence on the facts of any given case” [66].
The impact of Article 33 is, on its face, also considerable, as it indicates that 5–521A
only in the three instances specified can mitigating factors have any effect. This
impliedly suggests that all the other mitigating factors traditionally relied upon in
pleas of mitigation are no longer relevant where national security cases are involved
(See Cross and Cheung, Sentencing in Hong Kong (9th ed, LexisNexis) [App 30-1]-
[App 30-399]). Whether this was, in fact, the drafter’s intention, will need to be
clarified at some point, perhaps by an interpretation (Article 65).
Although, if an offence is minor, Article 33 enables the penalty to be “exempted”, 5–521B
which presumably means no sentence at all, a “conviction” has always meant two
things, namely, a finding of guilt and a sentence (HKSAR v Ho Tung Man [1997] 3
HKC 375). This dilemma, however, may be resolved by equating an “exemption”
with an order of absolute discharge, which is effectively a sentence devoid of pun-
ishment (R v Fung Chi Wood [1991] 1 HKLR 654).
XIII. CASES ON QUANTUM

Administering drug to facilitate unlawful sexual act
The offence of administering a drug to facilitate an unlawful act is punishable 5–522
with a maximum sentence of 14 years’ imprisonment: section 121 Crimes Ordinance
(Cap 200). This is a grave offence, and the aggravating features should be given full
weight: HKSAR v Wu Chi Keung [2007] 4 HKLRD 935.
Administering poison or other noxious thing with intent

to procure miscarriage
This offence carries a maximum sentence of life imprisonment: section 46, Crimes 5–523
Ordinance (Cap 200). Given that the circumstances are so varied, offences of this type
are not susceptible to sentencing tariffs, although sentences have generally ranged
between 18 months to 3 years’ imprisonment after a plea of guilty for a single offence,
except for those resulting in particularly grave consequences: HKSAR v Tsui Pik Fong
[2009] 5 HKLRD 493.
Affray
The offence of affray is punishable with 7 years’ imprisonment and a fine: common 5–524
law and s.101I of the Criminal Procedure Ordinance (Cap 221). In R v Pilgrim (1983)
5 Cr App R (S) 140, it was said that where there is an affray (or a riot), the sentence will
be influenced by the level of violence, the scale of the affray, the degree of premedi-
tation, and the number of people involved in its execution. The sentencing consider-
ations were reviewed in HKSAR v Yip Kam Wah [2008] HKCU 475 (CACC 413/2017).
See also R v Nguyen Quong Thong [1992] 2 HKCLR 10, [1992] HKCU 339.
Aggravated Burglary
Aggravated burglary is punishable with life imprisonment. In HKSAR v Yang Ming 5–525
(CACC 384/2004), an aggravated burglary was said to be a serious offence, and a
sentence of 7 years’ imprisonment was adopted as the starting point. In HKSAR
v Chan Li Fat [2010] 5 HKC 34, it was held that an overall sentence of 9 years’
625
imprisonment was appropriate after guilty pleas to two offences of aggravated burg-
lary in which the victims were tied up. In HKSAR v Chan Chun-man [2019] HKCA
516 (CACC 316/2017), a total sentence of 9 years 6 months’ imprisonment was
imposed upon a defendant convicted after trial of aggravated burglary and rape.
Arson
5–526 An offence of arson will often attract a sentence which starts at 5 years’ imprison-
ment, although the sentence will be very much higher if there is a serious danger
to life: Chau Yuk Kuen v R (CACC 402/1980), R v Li Mun Tong (CACC 309/1994),
HKSAR v Lo Po Tak [1998] 3 HKC 485, HKSAR v Sze Kwan Lung (CACC 92/2002);
HKSAR v Law Chun Man [2012] 4 HKLRD 320.
In HKSAR v Yim Kam Chung [2006] 4 HKLRD 810, the defendant, who suffered
from paranoia, was convicted after trial of arson. He set fire to a compartment of
an M.T.R. train, causing damage, chaos and disruption. He was sentenced to discre-
tionary life imprisonment, with a minimum term of 10 years. On appeal, it was held
that the case was suitable for life imprisonment, not least because of the danger to the
public. The defendant’s mental illness was incurable, and, given the seriousness of the
offence, the minimum term of 10 years was appropriate.
Assault Occasioning in Actual Bodily Harm

5–527 Imprisonment is invariably appropriate for an assault which occasions actual bodily
harm: HKSAR v Sek Siu Fun [2002] 4 HKC 369; HKSAR v Lee Tat Ming [2007] 1 HKLRD
440; HKSAR v Li Kwong-lam [2018] HKCFI 1397 (HCMA 99/2018, [2018] HKEC
1701). In HKSAR v Le Gat [2018] HKCFI 1291 (HCMA 655/2017, [2018] HKEC
1745), four months’ imprisonment was held to be an appropriate sentence after trial
for a defendant who violently assaulted his former girlfriend after a dispute. In HKSAR
v Chu Frankly (2019) 22 HKCFAR 1, [2018] 6 HKC 229, [2018] HKCFI 2072, a starting
point for sentence of four months’ imprisonment was adopted for a police officer who
struck a reporter with a baton. When police officers assaulted an arrested person in
HKSAR v Wong Cho Shing [2019] 4 HKC 410, [2019] HKCA 839, sentences after trial
of 15 to 18 months’ imprisonment were approved).
A fine is appropriate only in respect of very minor instances of assault occasioning
actual bodily harm, as explained in Secretary for Justice v Choi Shuk kan [2007] 3 HKLRD
421 (which involved excessive chastisement by a teacher, who received a suspended
sentence of imprisonment), and followed in HKSAR v Tong Chi Keung (HCMA 322/
2008); (which involved a $6,000 fine, as “a minor assault which could be dealt with by
way of a fine”, per Beeson J).
The courts have emphasised that violence in correctional institutions is unacceptable.
Those sentenced to custody are entitled to serve their sentences without fear of physical
violence: HKSAR v Kwok Ka Ming (HCMA 304/2008, [2008] HKEC 2032).
Assaulting Police Officer in Due Execution of Duty, resisting

police, etc
5–528 To assault a police officer is a serious matter, as is resisting, or obstructing a police
officer acting in the course of his duty, and a sentence of imprisonment is generally
invariably appropriate: HKSAR v Chan Hung Yau (HCMA 183/2002, [2002] HKEC
633), HKSAR v Cheung Wai Lung (HCMA 12/2007, [2007] HKEC 396), HKSAR v Hung
Hon Yee (HCMA 104/2010, [2010] HKEC 1201); HKSAR v Liu Lin Feng (CACC 206/
2011). Deterrent sentences are often required: HKSAR v Chan Pak Yeung [2018] 2
HKLRD 405. However, non-custodial options may sometimes arise: HKSAR v Chu Ka
Yin [2017] 3 HKLRD 1046.
Assisting Passage of Unauthorised Entrant to Hong Kong

5–529 Where a defendant is in charge of a vessel in which unauthorised entrants are car-
ried, a sentence of five years’ imprisonment is appropriate. The starting point should
be increased if there is evidence that the illegal immigrant is concealed in a place from
626
which escape will be difficult or if the vessel is in an unseaworthy condition. Further,
the starting point can be increased where unauthorised entrants, by reason of age or
physical condition, are at greater risk than a normal healthy person would be. An en-
trant at the advanced stage of her pregnancy falls within the category of persons who
are at greater risk: see HKSAR v Tsui Kwong Ming (CACC 247/2004, [2005] HKEC 4).
(See also HKSAR v Li Chih Hui (CACC 189/2008, [2009] HKEC 320)).
In HKSAR v Tse Chi Hei (CACC 393/2009, [2010] HKEC 730), it was held that unless
there were extremely unusual reasons, the sentencing starting point for the offence
should not, even in the presence of aggravating factors, be higher than 6 years’ impris-
onment. (See also HKSAR v Tang Zhuyan [2011] 1 HKLRD 447).
Behaving in disorderly manner in public place

In HKSAR v Chan Kwai Hung (HCMA 1108/2008, [2009] HKEC 1710), the de- 5–530
fendant, a correctional services officer, was convicted of behaving in a disorderly
manner in a public place. The facts showed that he positioned a bag containing a
mobile telephone with a camera lens under the skirt of a woman, whereby a breach
of the peace was likely to be caused. There was no tariff for this type of offence, and a
community service order of 160 hours’ duration was imposed. (In HKSAR v Lo Chi Hoi
[2007] HKCLRT 762, on similar facts, the defendant was charged with the common
law offence of outraging public decency, and it was held that even for a first offender
14 days’ imprisonment was an appropriate sentence).
Blackmail
The offence of blackmail is always treated seriously. It is one of the most serious of- 5–531
fences in the calendar of offences: Attorney General v Poon Kam Shing [1990] 2 HKLR
643. Sentences well in excess of 3 years’ imprisonment will often be appropriate: R
v Lau See Kau (CACC 573/1995). In HKSAR v Lui Chun Yeung (CACC 310/2013), a
starting point of 3 years and 3 months’ imprisonment was adopted in an extortion case
not in the most serious category. The offence is aggravated if there is a triad dimen-
sion to the case: HKSAR v Tam Yun Chuen (CACC 118/2008). In HKSAR v Chan Wai
Hang [2012] 3 HKLRD 726, a sentence of 10 years’ imprisonment was approved after
trial for a conspiracy to blackmail, involving an attempt to profit from the kidnapping
of a prominent individual. In HKSAR v Fong King Choi [2019] HKCA 776 (CACC 319/
2018), the factors for consideration where there is an extortion demand for money
are reviewed.
Bribery
The sentencing of an offender convicted of bribery is considered in Chapter 35, 5–532
Bribery and Corruption Offences (qv). (See also Cross & Cheung’s Sentencing in Hong
Kong (9th Ed., LexisNexis) [App-26]-[App-27]).
Buggery
The sentencing of an offender convicted of buggery is considered in Chapter 21, 5–533
Statutory Sexual Offences (qv). (See also Cross & Cheung’s Sentencing in Hong Kong
(9th Ed., LexisNexis) [App-170]-[App-172]).
Burglary
The usual starting point for sentence for a defendant of full age who commits a do- 5–534
mestic burglary is 3 years’ imprisonment: HKSAR v Lau Pang [2004] 3 HKLRD 565. The
starting point will be greater in the case of “professional criminals who plan their burg-
laries with meticulous care and steal goods and cash of considerable value””: HKSAR v
Chan Kwok Choi (CACC 365/2002, [2003] HKEC 397). Conversely, an amateurish burglary
with little of value taken may be treated more leniently: HKSAR v Leung Ting Fung [2015]
1 HKC 290. A burglary in the common parts of a commercial building may attract a lower
starting point than one in an individual home: HKSAR v Suen Chi Wai [2015] 5 HKLRD 55.
627
Aggravating factors in domestic burglary include planning, targeting the elderly or the
sick, repeated visits to the same premises, vandalism, the impact on the victim, the use of
force and repeat offending: R v Brewster [1998] 1 Cr App R (S) 181. Mitigating factors in-
clude the offender’s youth, good character and blighted career prospects: HKSAR v Tsang
Chun Yin [2018] 1 HKLRD 1128.
The usual starting point for sentence for a defendant who commits a burglary in
commercial (non-domestic) premises is 2½ years’ imprisonment: HKSAR v Khan Asif
[2010] 1 HKLRD 404. If the premises have been vacated and there is no actual loss of
property a lower starting point is possible: HKSAR v Lee Chiu Yui [2015] 1 HKC 323. If
the defendant is a professional burglar the sentence may be enhanced: HKSAR v Chan
Kwong Chun (CACC 299/2008, [2009] HKEC 375). In HKSAR v Cheng Wai Kai (CACC
338/2007, [2008] HKEC 1009), Yeung JA said: ‘The starting point can be adjusted
upwards if there are aggravating circumstances such as: (1) the offence is carefully
planned and skilfully executed involving the use of heavy instruments or equipment;
(2) the offence is committed by two or more people; (3) the offence targets substantial
premises and involves substantial properties; (4) the offender is a professional burglar
and not just an opportunist; (5) the offender has previous convictions, particularly pre-
vious convictions of a similar nature, and (6) the offender commits multiple offences.’
In HKSAR v Junaid Ahmed [2018] HKCA 159 (CACC 79/2017, [2018] HKEC 703),
the standard starting point for sentence for a non-domestic premises burglary was en-
hanced from 30 to 33 months’ imprisonment, to reflect the aggravating feature that
the defendant was a mandated refugee, who was to be sentenced in the same way as a
torture claimant.
The starting point for the burglary of a hotel room is at least the same as that for a
burglary of domestic premises: HKSAR v Ng Wai-Hing [2003] 2 HKLRD 338.
Carrying on Medical Practice without Registration

5–535 In HKSAR v Lei Xou Yi [2005] 3 HKLRD 556, the defendant pleaded guilty to, inter
alia, one charge of carrying on general medical practice without registration and another
charge of operating and keeping an unregistered clinic. He was a qualified mainland
doctor. Since 1982, he had operated a clinic in Mongkok. In 2003, one of his patients died
at his clinic, and his practice was discovered. The judge adopted a starting point of three
years’ imprisonment, reduced to two years for the plea, upheld on appeal.
Champerty
5–536 Champerty is punishable at common law with a maximum penalty of 7 years’ impris-
onment. Although rare, the offence is treated seriously: Secretary for Justice v Ip Hon Ming
[2015] 1 HKC 143. In a worst case of its type, a barrister, after trial, was sentenced to 3½
years’ imprisonment, with the Court of Appeal observing that it would not have interfered
with a sentence of 5 years’ imprisonment: HKSAR v Mui Kwok Keung [2014] 1 HKLRD 116.
Child Pornography
5–537 Possession of child pornography should generally attract an immediate custodial
sentence unless special circumstances exist. The first consideration is the appropriate
level of the relevant depictions (whether a photograph, film, computer generated
image or any other visual depiction). Also relevant is whether the depictions are: (1)
of real children, or (2) artificially created. If (2), it is important to consider all the
circumstances, such as whether the depictions may or will fall into the hands of other
people. The following are guidelines for determining the starting point when senten-
cing a first time offender after trial for possession of child pornography (involving real
children) based on the level of depiction:
(1) Level 1: images depicting erotic posing with no sexual activity. A community service
order, probation or fine is appropriate where the number of depictions is small
(20 or fewer), But where the numbers are large or the depictions are extremely
suggestive, custodial sentences of 1 to 6 months will be appropriate,
(2) Level 2: sexual activity between children or solo masturbation by a child. This is much
more serious than mere posing and depending on the number of depictions, an
628
immediate custodial sentence of up to 9 months is appropriate. Even the possession
of a few depictions at this level will generally attract a custodial sentence,
(3) Level 3: Non-penetrative sexual activity between adults and children. Depending on the
number of depictions, custodial sentences of 6 to 12 months will be appropriate,
(4) Level 4: penetrative sexual activity between children and adults, or sadism or bestiality.
These merits the most serious treatment and custodial sentences generally of
12 months (even for a few images) to 36 months.
The principal mitigating factor will be a timely plea of guilty, but the usual prin-
ciples of sentencing will otherwise apply. Aggravating factors include:
(1) A previous record involving a similar offence (or offences) against children,
(2) The age of the children depicted: where particularly young children are involved,
this will be an important consideration,
(3) The purpose for which the accused possessed the depictions: where it is proved
that the accused intended to disseminate the images for commercial (or even
non-commercial) gain or intended to publish, these will be significant aggravating
factors, and
(4) The number of images.
It is important for the sentencer to examine the images concerned or, at the
very least, a representative sample, so that their true nature and gravity is made
apparent.
See Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, for the guidelines;
see also HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354; HKSAR v Chan Hoi Tat [2012]
1 HKLRD 423; HKSAR v Tsang Cho Kiu (CACC 42/2014, [2014] HKEC 1770); HKSAR
v Kwok Po Lun [2015] 3 HKLRD 84.
In Secretary for Justice v Chan On Shun [2018] 3 HKLRD 447, a starting point of
18 months’ imprisonment was approved for a defendant who downloaded 43 child
pornography videos on his computer, depicting children aged 6 to 16 years.
The making of child pornography is more serious than simple possession, although
concurrent sentences may be appropriate where the defendant is also convicted of
indecent assault and the victim is common to both offences: HKSAR v Ipp Tin Fan
[2016] 4 HKLRD 486.
Common Assault
The maximum penalty for common assault is one years’ imprisonment, and there 5–538
is no customary sentence. Each case turns on its own facts. Whereas a bad case will
sometimes attract a short term of imprisonment, a fine will often be appropriate. See
HKSAR v Law Hon Hing [2000] 2 HKLRD 829 (road rage); HKSAR v Chan Wai Kwok
(HCMA 569/2004) (assault on customs officer); HKSAR v Tin Siu Hung [2006] 1
HKLRD 29 (serious case).
Computer Crime
The sentencing of an offender convicted of a computer-related crime is considered 5–539
in Chapter 43, Computer Crimes (qv). (See also Cross & Cheung’s Sentencing in Hong
Kong (9th Ed., LexisNexis), [App-19]).
Conspiracy to Defraud
A conspiracy to defraud can arise in a variety of situations, perhaps most com- 5–540
monly in the business world, where large sums of money are involved and there
are serious consequences: Att-Gen v Cheung Kai Man, Dominic [1987] HKLR 788.
There is sometimes an element of corruption: Secretary for Justice v Law Tat Leung
[2008] 5 HKLRD 927. Sometimes the fraud is perpetrated upon a government de-
partment: HKSAR v Cheung-Suet Ching [2010] 6 HKC 249. The fraud may involve
bogus marriage: HKSAR v Chan Hung Ho [2013] 2 HKLRD 216. Such frauds attract
condign punishment.
Street deception cases, invariably practiced on elderly people, are very serious of-
fences which call for deterrent sentences: HKSAR v Fu Jian Yu [2004] 2 HKLRD 468;
HKSAR v Ye Ya Liu (CACC 85/2008, [2008] HKEC 2219). An elaborate fraud on a
629
publicly listed company may be severely sentenced: Secretary for Justice v Lo King Fat
(CAAR 6/2014, [2015] HKEC 2688).
Telephone deception cases are as serious as street deceptions, if not more so,
and while the normal starting point for street deception cases range from 3 years
to 3.5 years’ imprisonment, the starting point for telephone deception cases
is 4 years’ imprisonment: HKSAR v Hung Yung Chan (CACC 453/2009, [2010]
HKEC 730).
Contempt of Court
5–541 Criminal contempt is treated seriously. In Secretary for Justice v Wong Chi Fung [2019]
2 HKLRD 1286, [2019] HKCA 548, where public officers were obstructed while exe-
cuting a court order, it was held that a criminal contempt challenges the rule of law,
that deterrence is ordinarily the primary sentencing consideration, and that impris-
onment is generally called for.
Copyright Offences
5–542 Copyright crime is punished severely, particularly if manufacturing is in-
volved: HKSAR v Chan Kwok Hung [2000] 3 HKLRD 389. This is an offence which
damages Hong Kong’s International standing, and is to be deterred. The appropriate
starting point for selling infringing copies of copyright works for the purpose of trade
or business and possessing infringing copies for such purposes involving about 1,200
items is 14 months’ imprisonment: HKSAR v Ye Hai Yan (HCMA 911/2003). Save in
exceptional circumstances, those who make infringing copies of copyright works must
expect an immediate custodial sentence: HKSAR v Lee Yuk Chun (CACC 487/2004,
[2005] HKEC 770).
The Copyright Ordinance (Ch 528) makes no distinction in terms of gravity be-
tween offences where the defendant has commercial interests and those without. The
absence of a commercial motive is of limited significance when assessing the serious-
ness of the offence and the appropriate penalty. The tenor of the sentence is set by
the harm to the victim, rather than by the gain made to the offender: HKSAR v Chan
Nai Ming [2007] 1 HKLRD 95.
For failure to make proper enquires: see HKSAR v Yiu Chun Chu (HCMA 1192/
2007, [2008] HKEC 1624).
Offences contravening the Copyright Ordinance (Cap 428) are serious, and
save in exceptional circumstances, immediate custodial sentences have to be im-
posed. A distinction should be drawn based on a defendant’s role: the mastermind
of a pirated disc manufacturing operation will receive a longer sentence; while
someone responsible for manufacturing, packing and delivering the discs will be
sentenced in light of the quantity of infringing articles, the length of time over
which the piracy takes place and other factors such as whether the defendant has
pleaded guilty to the charges: HKSAR v Hua Gui Hong [2009] 4 HKLRD 431.
In HKSAR v Chan Cheong Kit [2010] 2 HKLRD 641, the aggravating factors involved
in making, possessing and selling large quantities of infringing compact discs were
reviewed in a “worst case of its kind” scenario, with a money laundering dimension,
together with the enhancement of sentence.
Creating false appearance of active trading in securities

5–543 Sentences for imprisonment for this offence cannot be complained of even for
first time offenders. They cause real and substantial losses to investors and bring an
important part of Hong Kong’s economy into disrepute: see Securities and Futures
Commission v Lee Sing-wai (HCMA 132 of 2006) [2006] 1 HKLRD C7.
Credit Card Offences

5–544 In HKSAR v Lau Pui Hang (CA 393 of 2003) [2004] 1 HKLRD C16, the defendant
was convicted after trial of conspiracy to use false instruments. He suggested to X
that he could supply him with forged credit cards which X could then use to make
630
purchases, with the proceeds to be split between them. At the defendant’s suggestion,
X asked Y to join in the scheme. The defendant met with X and Y together with the
defendant’s girlfriend and another man, Z, and Z then provided the defendant with
two forged credit cards which the defendant handed to X and Y. The group then
made a successful test purchase with the cards. They were on their way to use the
cards at a mobile telephone shop, when X and Y were stopped by the police and later
arrested. It was held that the four principal sentencing considerations for such cases
were: (1) the size of the operation, eg whether it involved large sums of money or
concerned large numbers of persons or forged credit cards, (2) the planning that had
gone into perpetrating the fraud, (3) whether there was an international dimension,
and (4) whether the accused played a major role or was merely a “cog in the wheel”.
The sum of money was only one of the factors and not the most significant. This was
particularly important in cases of this kind where the potential for creating large-scale
losses to banks and credit card companies was enormous. Here, it was purely through
good fortune that X and Y were caught before their agreement with the defendant
could be fully implemented.
Further, a deterrent sentence would usually be called for in respect of credit card of-
fences which were easily committed and where the culprits were hard to catch. Taking
into account all these considerations, the defendant had received a disproportionately
lengthy sentence bearing in mind the relatively small scale of the operation and its
limited potential for loss by the use of only two credit cards. Accordingly, the original
sentence was reduced from four years to three years’ imprisonment.
Where the facts of the offence point to a small, unsophisticated operation, involv-
ing only a few forged credit cards and uncomplicated by evidence which linked the
defendant to a larger operation, a starting point of 3 years’ imprisonment or less
was appropriate: see HKSAR v Tu I-lang (CACC 464 of 2006, [2007] 2 HKLRD E8).
Where young offenders are concerned and the offences are not of the most serious,
alternatives to imprisonment may still be considered and background reports can be
considered: HKSAR v Dhaliwal Jaspreet Kaur [2019] HKCA 1205 (CACC 337/2018).
Credit card offences are a running scourge, which warrant deterrent sentences. But
sentencing is an art which must carefully be moulded not only to the category of of-
fence but to the offender. There is a danger of sentencing becoming over-mechanical
with too little regard for unusual circumstances that may arise in relation to the com-
mission of particular offences and too little regard to peculiar circumstances, which de-
serve careful attention. An overly rigid pre-occupation with uniformity can be inimical
to individual justice: HKSAR v Leung Pui Shan (CACC 317/2007, [2008] 4 HKLRD I4).
If an offender from elsewhere brings forged credit cards into Hong Kong for
fraudulent purposes, this constitutes an “aggravating international element for sen-
tencing purposes”: HKSAR v Loh Joo Hooi [2014] 3 HKC 301, per Macrae J.
Criminal damage
The offence of criminal damage is punishable with 10 years’ imprisonment, and 5–545
each case turns on its own facts. For example, in HKSAR v Pun Wai Wing (CACC
113/2007, [2007] CHKEC 574), the defendant was convicted after trial of criminal
damage, and the evidence showed that he was the driver of a public light bus, and he
deliberately hit his light bus against another public light bus driven by V. At the time of
the collision, there were six to seven passengers on board the defendant’s bus and two
police officers posing as passengers on board V.’s bus. The defendant had 11 previous
convictions, most of which related to offences involving violence and one of which was
in respect of criminal damage. He was sentenced to 15 months’ imprisonment. It was
held that the sentence was not wrong in principle.
Criminal Intimidation
There is no tariff for the offence of criminal intimidation, and each case turns on 5–546
its own facts. The maximum penalty on indictment is 5 years’ imprisonment. A very
serious case will attract a substantial sentence: HKSAR v Chiang Tai Mei [2002] 3
HKC 517.
631
Cruelty to Animals
5–547 The maximum penalty for an offence of cruelty to animals is 3 years’ imprisonment
and a fine of $200,000: section 3, Prevention of Cruelty to Animals Ordinance (Cap
169). There is no tariff sentence, and each case is fact specific, with the more serious
offences attracting imprisonment: Secretary for Justice v Iu Chi Yung [2008] 5 HKC 306.
In Secretary for Justice v Fung Chi Hoi [2019] HKCA 391 (CAAR 4/2017), a starting
point for sentence of six months’ imprisonment was adopted for a defendant whose
mistreatment of a dog resulted in its death. If a dog or cat is slaughtered for food, an
immediate custodial sentence may result: HKSAR v Lau Lap Kei [2007] 3 HKLRD 273.
(See also HKSAR v Chang Kwai Ming [2016] 1 HKLRD 1218).
Dangerous Drugs (Manufacturing)

5–548 The manufacturing of dangerous drugs is a more serious offence than is trafficking
in dangerous drugs, because, unlike with trafficking, the quantity of drugs is not static,
but represents that which has, so far, been manufactured and not been disposed of.
The quantity of drugs involved is only one factor in the sentencing of drug manufac-
turing cases: see HKSAR v Ip Yuet Ho [2008] 6 HKC 35.
The starting point for sentence for drug trafficking is mainly a reflection of the
quantity of drugs involved. In drug manufacturing cases, the most serious of all drug-
related offences, the quantity of drugs seized may give an idea of the scale of the oper-
ation, but is not the sole or dominant consideration in determining the starting point.
The considerations for determining the proper sentence include the quantity of drugs
produced, the scale of operation, the capacity of equipment, the output of drugs at
the manufacturing station and the role played by the accused. In any event, for the of-
fence of drug manufacturing, in order to reflect the gravity of the offence, the appro-
priate minimum starting point is six years irrespective of the quantity of drugs seized.
It is only in exceptional cases, as where the capacity of the equipment is very small,
that a court should consider a starting point of less than ten years’ imprisonment: see
HKSAR v Kan Kong Fai [2009] 3 HKLRD 582.
In HKSAR v Pei Yuk Kam (CACC 213/2010), it was held that the criminality involved
in manufacturing and doing an act preparatory to or for the purpose of manufactur-
ing a dangerous drug is such as to attract a similar sentence for each.
In HKSAR v Chan Fai [2004] 3 HKLRD 465, the defendant was convicted after trial
of conspiracy to manufacture a dangerous drug, namely ketamine, and sentenced to
8 years’ imprisonment. The police found in the subject premises tools and substances
for manufacturing ketamine, although expert evidence showed that those substances
per se were unable to produce ketamine. It was held that the scale of the manufactur-
ing operation was large, involving a substantial amount of raw materials and a poten-
tially large quantity (20 kg) of ketamine. The defendant played a crucial role in the
operation by employing another person to work for him, and seeking advice as to how
to improve on the manufacturing process. That the substances found could not by
themselves produce ketamine did not justify a lenient sentence. Otherwise, offenders
would split up the manufacturing operation into various processes and locations in
the hope of obtaining a lenient sentence.
In HKSAR v Ki Chun Pong [2018] HKCA 1013, a starting point for sentence of
15 years’ imprisonment was approved for a conspiracy to manufacture ketamine,
involving 4,667gms of solid.
Dangerous Drugs (Possession)

5–549 This offence is punishable with a maximum sentence of 7 years’ imprisonment and
a fine of $1,000,000: s 8, Dangerous Drugs Ordinance (Cap 134).
In HKSAR v Lam Man Wai (HCMA 618/2004, [2004] 2 HKLRD G7), the defendant
pleaded guilty to possession of dangerous drugs, namely 0.2 gm of a powder containing
5 mg of midazolam maleate. The magistrate took a starting point of six months’ im-
prisonment after taking into account that the defendant was a multiple offender, with
eight previous convictions for possession, and that the current offence was committed
whilst on bail. This was reduced to four months to take into account the defendant’s
632
plea. It was held that the approach by the magistrate in the circumstances was entirely
correct. The appeal was dismissed.
In HKSAR v Chan Sai Hap (HCMA 1274/2004, [2005] HKLRD (Yrbk) 285), the
defendant pleaded guilty to two offences of being in possession of “ice”. The first
offence involved 0.72 gm, and the second, which was committed whilst on bail for
the first offence, involved 2.83 gm. For the first offence the magistrate took a starting
point of six months’ imprisonment, which was reduced to four months for his guilty
plea, and for the second offence took a starting point of 12 months’ imprisonment,
which was reduced to eight months to reflect his guilty plea. The sentences were to
run consecutively. The appeal was dismissed. An appropriate starting point for the
mere possession of a quantity of ice which a genuine user will normally have in his
possession should be in the range of 12 to 18 months’ imprisonment: HKSAR v Jarhia
Kuldeep Singh (CACC 96/2006, [2006] HKEC 1748).
The tariff for up to 2,000 gm of cannabis resin is a maximum of 16 months’ im-
prisonment after trial: HKSAR v Rai Danesh (HCMA 31/2005, [2005] 2 HKLRD D6).
Three steps are involved in determining the appropriate sentence for possessing
dangerous drugs: (a) fixing the starting point, which will usually be 12 to 18 months’
imprisonment; (b) considering whether the starting point is to be raised in the light
of potential risk of the drugs being re-distributed; and (c) considering whether the
total sentence is to be reduced in the light of mitigating factors: HKSAR v Wong Kwan
Po [2006] 2 HKLRD 177.
Notwithstanding the usual sentencing level, the courts have a wide discretion, and
non-custodial sentences are possible if the quantity possessed is “very small”: HKSAR v
Tang Kin Chung, Henry [2019] HKCFI 232.
The latent risk factor in cases of simple possession is a legitimate and constitutional
aid to sentencing, although the word “latent” is perhaps misleading, because “what is
of justifiable societal concern is actual risk disclosed by the facts of the case; in other
words, actual risk of dissemination”: HKSAR v Minney, John Edwin [2011] 3 HKLRD
556. (See also HKSAR v Minney, John Edwin [2013] 6 HKC 10, CFA.)
In HKSAR v Chan Sung Wing [2008] 1 HKLRD 126, the defendant pleaded guilty
to possession of 0.1 gm. of a solid containing cocaine and 0.02 gm. of a powder con-
taining cocaine hydrochloride (charge 1) and manufacturing a dangerous drug, con-
trary to s 6(1)(a) and 6(2) of the Dangerous Drugs Ordinance (Cap 134), (charge 2).
The defendant, who was found by the police with drug manufacturing paraphernalia,
was using the cocaine hydrochloride powder to manufacture cocaine base for his per-
sonal consumption. A forensic chemist estimated that if three test tubes recovered
were each used once, the defendant could produce less than 2 gm. of cocaine base by
distilling the powder mixed with sodium bicarbonate. It was held that charge 2 should
never have been brought. As one of the most serious criminal charges, it was being
severely devalued by misuse. The charge was intended for trafficking in dangerous
drugs, very often to enhance the sentence, above the normal tariff sentences given to
couriers and shopkeepers, and should be reserved, in suitable cases, for traffickers.
The whole purpose and gravity of the charge was negated, if it was preferred in every
case of simple possession for self-consumption involving, in a purely technical way,
manufacturing, i.e. adulterating, purifying, mixing, separating or otherwise treating a
dangerous drug. Further, the charge should not have resulted in any increase in the
sentence for possession of cocaine. The sentence on charge 2 was quashed and substi-
tuted with a formal sentence of one day’s imprisonment.
In HKSAR v Yeung Lung (HCMA 684/2016, [2017] HKEC 674), it was held that a
starting point for sentence of 15 months’ imprisonment was within the appropriate
range for the offence of inhaling methamphetamine hydrochloride (“ice”) on a stair-
case to which the public, including children, had access.
In HKSAR v Tsang Ma Yeung [2010] 2 HKLRD 206 (CFI), the court held that it
was wrong to equate possession of equipment fit and intended for injection of a dan-
gerous drug with possession of a dangerous drug. It was also wrong to increase the
sentence because apparatus had been used to inject dangerous drugs. Although the
fact that the equipment was intended to be shared by many people or to be used in
a public place constituted factors for increasing sentence, the court reduced the ori-
ginal sentence of 8 months imprisonment to one of 5 months.
633
(See also Cross & Cheung’s Sentencing in Hong Kong (9th Ed., LexisNexis)
[App-48]).
Dangerous Drugs (Trafficking)

5–550 (i) Cannabis: The sentencing guidelines are contained in Att-Gen v Chan Chi Man
[1987] HKLR 221, as re-cast in Att-Gen v Tuen Shui Ming [1995] 2 HKC 798. The
guidelines indicate:
Under 2,000gms of cannabis resin, up to 16 months’ imprisonment; over
2,000gms, 16 to 24 months’ imprisonment; over 3,000gms, 24 to 36 months’
imprisonment; over 6,000gms, 36 to 48 months’ imprisonment; over 9,000gms,
4 years’ imprisonment upwards. Cannabis resin has an average concentration
of THC about four times higher than the average found in herbal cannabis,
and cannabis oil has an average also four times higher than the average in
cannabis resin. This means that the court must adjust the cannabis resin tariff
when sentencing for either herbal cannabis or cannabis oil. Unless the quantity
is very large, persons with herbal cannabis might be given a discount of up to
a year from the cannabis resin tariff. Persons with cannabis oil might face an
increase of at least a year. (This tariff relates to cannabis resin; in the case of
herbal cannabis, the court may take into account its less damaging effect, and
adjust sentence accordingly; in the case of cannabis oil, the court may take into
account its more damaging effect, and adjust sentence accordingly).
(ii) Cocaine: the sentencing guidelines are aligned to the guidelines for trafficking
in heroin (see below); see HKSAR v Suwanti [2014] 1 HKLRD 619. In HKSAR
v Ousmane Isaa Boubacar (HCMA 381/2015, [2015] HKEC 2134), 18 months’
imprisonment was imposed after trial upon an accused who trafficked in 0.1gm
of cocaine. In HKSAR v Benites Cerna Anibal Ronal [2018] 2 HKLRD 1, the levels
of enhancement for importation were reviewed. In HKSAR v Valencia [2018] 3
HKC 308, a starting point of 20 years 6 months’ imprisonment was adopted for
trafficking in 707gms of cocaine, enhanced by 1 year to reflect the international
element.
(iii) Cocktail drugs: see HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Ko Ka Hing
[2009] 4 HKLRD 856; HKSAR v Leung Chun Pong [2009] 6 HKC 672; HKSAR
v Wong Kin Kau [2010] 4 HKC 443. There is the ‘individual’ approach and the
‘combined’ approach to sentencing where there is trafficking in a mixture of
drugs. The individual approach is to look at each component of the cocktail
or batch and then to sentence by adding up the different sentences relevant
to each individual drug. The combined approach involves the calculation of
the applicable sentence for the more serious or most serious drug, in terms of
potency, then to take into significant quantities of other (less serious) drugs.
The circumstances of the case will determine which approach is appropriate,
though the combined approach will often be preferable: HKSAR v Wan Lau Mei
(CACC 389/2013, [2014] HKEC 528).
In HKSAR v Chan Yuk Leong (CACC 318/2013, [2014] HKEC 602), it was said
that the three tests for determining whether a sentence for trafficking in a
cocktail of drugs is appropriate are the absurdity test, the conversion test and
the ratio test.
In HKSAR v Wong Kin Kau [2010] 4 HKC 443, the court compared the tariffs
in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and Attorney General
v Ching Kwok Hung [1991] 2 HKLR 125, and observed that 300g of ketamine
carried roughly the same sentence as 60g of ICE. On that basis, the court held
that the applicant who trafficked in 300g of ketamine and around 57.39g of Ice
should be sentenced as if he had in his possession of 120 grammes of Ice or 600
grammes of ketamine, of which sentence, in either case, would have been about
12 years. In sentencing, the court could also take into account the potential of
the drugs being mixed for the enhancement of their potency.
In HKSAR v Cheung Yuk Sim, Tenny (CACC 61/2016, [2017] HKEC 2377), it was
said that a court is entitled to enhance the starting point for sentence if the
offence involves trafficking in two different types of drugs and the quantities are
significant.
(iv) Ecstasy (MDMA): The sentencing guidelines are contained in Secretary for Justice v
Hii Siew Cheng [2009] 1 HKLRD 1. The guidelines indicate:
634
Up to 1gm – within the discretion of the sentencer; over 1gm to 10gms – 2 to
4 years’ imprisonment; 10 to 50gms – 4 to 6 years’ imprisonment; 50 to 300gms –
6 to 9 years’ imprisonment; 300 to 600gms – 9 to 12 years’ imprisonment;
600 to 1,000gms – 12 to 14 years’ imprisonment; over 1,000gms – 14 years’
imprisonment upwards.
(v) Gamma butyrolactone (GBL)/Gamma hydroxybutyric acid (GHB): Although the
effects of this drug are similar to the effect of benzodiazepines, it is a “date-
rape drug”, and potency is not determinative of sentence; the sentencing level
for trafficking in GBL (which is the same as GBH, of which it is a prodrug) is
50% higher than the sentencing level for trafficking benzodiazepines (such as
diazepam, for which see R v Orton, at (ix) (c), below): HKSAR v Lam Chi Tak
[2019] 4 HKC 516, [2019] HKCFI 919.
(vi) Heroin: The sentencing guidelines are contained in R v Lau Tak Ming [1990] 2
HKLR 370, as adjusted in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.
The guidelines indicate:
Up to 10gms – 3 to 5 years’ imprisonment; 10 to 50gms – 5 to 8 years’
imprisonment; 50 to 200gms – 8 to 12 years’ imprisonment; 200 to 400gms – 12
to 15 years’ imprisonment; 400 to 600gms – 15 to 20 years’ imprisonment; 600
to 1,200gms – 20 to 23 years’ imprisonment’ 1,200 to 4,000gms – 23 to 26 years’
imprisonment; 4,000 to 15,000gms – 26 to 30 years’ imprisonment; over 15,000 –
at the sentencer’s discretion. (These quantities refer to the amount of narcotic,
not to the overall weight of the mixture).
These guidelines are for the courier or storekeeper who unlawfully traffics in
heroin; the culpability of drug traffickers who organise and use couriers and
storekeepers to deal in drugs is “obviously greater”: HKSAR v Kilima Abubakar
Abbas [2018] 5 HKLRD 88, at [24], per Lunn VP.
Enhancement is appropriate where there is an importation: HKSAR v Benites
Cerna Anibal Ronal [2018] 2 HKLRD 1.
(vii) ICE (methamphetamine hydrochloride): The sentencing guidelines are
contained in Attorney General v Shing Kwok Hung [1991] 2 HKLR 125, as amended
in HKSAR v Capitania (CACC 28/2004), [2004] HKEC 965) and as revised in
HKSAR v Tam Yi Chun: [2014] 4 HKC 256. They were applied to overturn a drug
addiction treatment centre order in Secretary for Justice v Chan Suet Ping [2018] 1
HKLRD 305. The guidelines, as revised, indicate:
Up to 10gms – 3 to 7 years’ imprisonment; 10 to 70gms – 7 to 11 years’
imprisonment; 70 to 300gms – 10 to 15 years’ imprisonment; 300 to 600gms –
15 to 20 years’ imprisonment; over 600gms, the same tariffs as prescribed for
heroin in Abdallah Anwar Abbas (see above).
(viii) Ketamine: The sentencing guidelines are contained in Secretary for Justice v
Hii Siew Cheong [2009] 1 HKLRD 1, and follow those for Ecstasy (see above).
See also HKSAR v Ng Siu Kam [2012] 1 HKC 1 (conspiracy to traffic; 20 years’
imprisonment after trial); HKSAR v Chow Yau Ching [2014] 2 HKLRD 639
(13 years 2 months’ imprisonment after guilty plea to trafficking in 3.36kg of
powder containing 2.89kg of ketamine). HKSAR v Wong Ka Chun [2016] 4 HKC
424 (16 years’ imprisonment after guilty plea for 16-year-old who trafficked in
9.94 kilos of a powder containing 8.33 kilos of ketamine worth $1.2 million). In
HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, it was said that a starting point
of 18 years’ imprisonment was an appropriate starting point for 2,000 gms of
narcotic, rising to 20 years for 3,000 gms, with sentences in excess of 20 years for
quantities larger than that.
Where cross border trafficking in ketamine occurs, it was held in HKSAR v Chan
Ka Yiu [2018] HKCA 410, [2018] 4 HKC 591, that these enhancements are
justified: (a) for up to 500 gms, up to 6 months’ imprisonment; (b) for 500 to
1,000 gms, 6 months to 1 year’s imprisonment; (c) for 1,000 to 3,000 gms, 1 to
2 years’ imprisonment; (d) over 3,000 gms, 2 years’ imprisonment.
(ix) Methaqualone and diazepam: See Attorney General v Chan Chi Man [1987] HKLR
221; R v Sin Shing Cheong [1987] HKLR 1123; R v To Shing [1988] 1 HKLR 123;
R v Orton (HCMA 225/1997, [1997] HKLY 354). The cases show the customary
sentences to be:
(a) methaqualone powder: Under 500gms, as the court sees fit; over 500gms –
6 to 12 months’ imprisonment; over 1,000gms – 12 to 24 months’
imprisonment; over 2,000gms – 2 to 3 years’ imprisonment; over
635
3,000gms – 3 to 4½ years’ imprisonment; over 6,000gms – 4½ years’
imprisonment; over 9,000gms – 6 years’ imprisonment upwards;
(b) methaqualone tablets: Up to 2,000 tablets – as the court sees fit; over 2,000
tablets – 6 to 12 months’ imprisonment; over 4,000 tablets – 12 to 24 months’
imprisonment; over 8,000 tablets – 2 to 3 years’ imprisonment; over
12,000 tablets – 3 to 4½ years’ imprisonment; over 36,000 tablets – 6 years’
imprisonment upwards;
(c) diazepam (a form of benzodiazepine): ‘A comparison of methaqualone and
diazepam confirms that in respect of all the major indicators diazepam
occupies a significantly lesser place in the hierarchy than does methaqualone
and therefore in respect of the same quantity of drug sentences for diazepam
should be significantly less than methaqualone but still high enough to
mark the fact that diazepam is a dangerous drug. I would have thought
that a sentence of about two thirds of that appropriate for a quantity of
methaqualone would be right in the circumstances and for the same amount
of diazepam,’ per Gall J in R v Orton (HCMA 225/1997, [1997] HKLY 354),
per Gall J.
(x) Midazolam: See HKSAR v Choi Tung Cheung (HCMA 759/2005); HKSAR v Hung
Mei Kwan (HCMA 142/2006, [2003] HKEC 404). The customary sentences are
aligned to those in place for trafficking in methaqualone (see above).
(xi) NN – dimethylamphetamine (NNDMA): see HKSAR v Ngan Ka Chun [2010]
2 HKLRD 190. The customary sentences are aligned to those in place for
trafficking in Ice (see above), with an adjustment on account of the potency
differential.
(xii) Opium: see R v Lau Yiu Nam [1986] HKLR 964. The guidelines indicate:
Below 500gms, within the court’s discretion; over 500gms, 6 to 12 months’ impris-
onment; over 1,000gms, 12 months to 2 years’ imprisonment; over 2,000gms, 2 to
3 years’ imprisonment; over 3,000 gms, 3 years’ imprisonment upwards.
The courts seek to ensure consistency of sentencing as between all persons con-
victed of trafficking in dangerous drugs: HKSAR v Burnales [2000] 4 HKC 636; HKSAR
v Manalo [2001] 1 HKLRD 557; HKSAR v Somphaksom Lamyai [2009] 1 HKC 437.
Couriers are no less culpable than storekeepers, though less culpable than whole-
salers or masterminds.
The offence of trafficking is aggravated if the trafficker makes use of the young or
the otherwise vulnerable: Abdallah Anwar Abhas [2009] 2 HKLRD 437. It is aggravated
as a matter of law: HKSAR v Lam Kam Kwong [2002] 1 HKC 541. See also HKSAR v
Chan Ka Shing [2012] 2 HKLRD 214. Traffickers who are either young or old cannot
normally pray their age in mitigation of sentence: Attorney General v Kong King Man
[1997] HKLRD 350.
In HKSAR v Montoya Munoz Mauricio [2018] HKCA 931, the factors influencing the
extent of enhancement when a defendant comes to Hong Kong for the purpose of
engaging in drug trafficking are considered. Although the offence of trafficking is ag-
gravated where there is an international element, there are shades of culpability, and
the sentence enhancement may be less for the defendant who collects the drugs from
the Post Office than for someone who actually imports them into Hong Kong: HKSAR
v Ali Qasim [2020] HKCA 56.
If a part of the drugs is for the defendant’s own consumption and a part is for traf-
ficking, the court should adjust the sentence to reflect this: HKSAR v Wong Suet Hau
[2002] 1 HKLRD 69; Secretary for Justice v Chan Chun Fai [2011] 3 HKC 364. This, how-
ever, is provided that the quantity for self-use is “significant”: HKSAR v Cheung Wai Man
[2018] HKCA 731. When this situation occurs, it may not be appropriate for the court
to stipulate the amount of discount that is given from the starting point: HKSAR v Li
Wai Keung [2012] 2 HKC 161. In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, it
was said that if all or most of the drugs in a trafficking case were for self-consumption,
the discount from the otherwise appropriate sentence should be in the range of 10%
to 25%, depending on the circumstances. The extent to which an appropriate start-
ing point “can be discounted to allow for self-consumption is a fact sensitive issue
which does not lend itself to mathematical precision”: HKSAR v Ngai Ho Ting [2013]
4 HKC 547.
636
It is incumbent upon a defendant who relies on self-consumption as mitigation in a
trafficking case to establish that this is in fact so to the satisfaction of the court, and a
mere assertion will not achieve this. Instead, what is required is “credible and reliable
information and material in an acceptable form”: HKSAR v Cheung Wai Man [2018]
HKCA 731, per Zervos JA.
Although concurrent sentences will normally be appropriate where the defendant
faces charges of trafficking and unlawful possession, consecutive sentences may, sub-
ject to totality, be warranted if the amount possessed for trafficking is small: HKSAR v
Gurung Laxman [2017] 3 HKLRD 483.
If the defendant is guilty of trafficking in a substance which he mistakenly believes
to be a dangerous drug, the court will take the mens rea as being exactly the same as
if the substance was in fact a dangerous drug: HKSAR v Lee Oi Yee [2012] 1 HKLRD
276. However, if the actual drug trafficked will cause little or no harm, this should
result in a sentencing discount: HKSAR v Cheng Ling-ling [2019] HKCA 636 (CACC
66/2018).
If a defendant is under a mistaken belief that the drugs trafficked are less potent
than they actually are, and he has taken appropriate steps to form a genuine belief
about the nature or status of the drugs involved, this is an extenuating circumstance
which operates in his favour; however, the amount of reduction is “fact sensitive
and will depend very much upon the significance of the difference between what
the defendant actually imported, in terms of the nature and quantity of the drugs,
and what the defendant believed he was importing”: HKSAR v Yeung Hoi Ting [2019]
HKCA 31 (CACC 154/2016), per Zervos JA. (See also HKSAR v Yip Wai Yin [2004]
3 HKC 367].
If the defendant is a Form 8 recognizance holder, awaiting the outcome of a non-
refoulement claim, an enhancement of at least 6 months’ imprisonment is appro-
priate: HKSAR v SK Hasnninzzaman [2018] HKCA 374 (CACC 301/2017, [2018]
HKEC 1705).
Dangerous Drugs (Tenant permitting premises to be used

for storage of dangerous drugs)
This offence is punishable with a maximum sentence of 15 years’ imprisonment, 5–551
and a fine of $5,000,000: section 37, Dangerous Drugs Ordinance (Cap 134).
See HKSAR v Ho Wing To [2011] 4 HKLRD 465.
Delivering for sale of meat containing prohibited substances

In HKSAR v Shum Wai Hung (HCMA 616 of 2006 [2006] HKLRD (Yrbk) 318), the 5–552
defendant pleaded guilty to two charges of delivering for sale meat containing pro-
hibited substances, contrary to Regs. 3A and 5 of the Harmful Substances in Food
Regulations (Cap 132). He delivered meat through unofficial channels to make
extra money. In the first offence, he was stopped at Sha Tau Kok border checkpoint
and found with 2,617 kg of raw skinned port and offal. No documents to show the
source of the meat were produced, which contained clenbuterol, a prohibited sub-
stance. Two months later, whilst on bail, the defendant was stopped and found with
4,018 kg of raw pork and offal containing clenbuterol. He was sentenced to four
weeks’ imprisonment on the first charge, and two months imprisonment on the
second charge, both sentences to run consecutively. It was held that the suspension
of an immediate term of imprisonment was appropriate where the commission of
the offence was considered as a single fall from grace. Here, the second offence was
a repetition of the first offence and committed on bail, which ruled out a suspended
sentence.
Depositing litter in public place

In HKSAR v Wong King Kwong [2006] 1 HKLRD 136, a fine of $500 was appropriate 5–553
for a defendant who discarded a cigarette butt in a public place.
637
Desecration of national and regional flags
5–554 The maximum sentence for these discrete offences is a fine at Level 5 and 3 years’
imprisonment. In HKSAR v Koo Sze-yiu [2013] 426, [2013] HKCU 1109, a sentence of
4 months 2 weeks’ imprisonment was imposed after trial for three offences of dese-
crating the national flag, and one of desecrating the regional flag, and the point was
made that burning the flag is more serious than defiling it. In Secretary for Justice v Law
Man Chung [2020] HKCA 262 (CAAR 4/2019), the levels of sentence for desecrating
the national flag are discussed, together with the sentencing considerations.
Displaying signs that advertise prostitution

5–555 The maximum penalty for this offence is 12 months’ imprisonment, and a fine of
$100,000. In HKSAR v Chan Chun Por (HCMA 1053/2005, [2006] 1 HKLRD A9), the
defendant pleaded guilty to, inter alia, displaying signs that advertised prostitution.
A fine of $15,000 was upheld on appeal.
Dutiable Commodities
5–556 In HKSAR v Wong Ka Ming (HCMA 965/2004), the defendant was convicted after
trial of four offences which arose from the supply and possession of some 750 litres
of combustible fuel in premises that purported to be a car wash. He was sentenced
to a total of nine months’ imprisonment. As the operation posed a serious danger to
neighbouring buildings and to those in the general vicinity, an immediate custodial
sentence was appropriate.
In HKSAR v Shalim [2018] 3 HKC 12, a sentence of 4 months’ imprisonment
was imposed, after a guilty plea, for possession of dutiable goods, in circumstances
where 40,981 cigarettes were imported but not declared, with a potential duty of
$78,109.79.
Endangering safety of others at sea

5–557 This offence is punishable with a maximum sentence of 4 years’ imprisonment and
a fine of $200,000. In HKSAR v Chow Tin Shing [2007] 4 HKLRD 991, it was held that
notwithstanding that the defendant caused a person’s death, he performed no de-
liberately dangerous manoeuvres and had not risked the lives and safety of others in
a calculated and/or deliberately reckless manner. Given the circumstances and the
maximum 4-year term for this offence, a starting point of 18 months’ imprisonment
was appropriate. See also HKSAR v Kulemsin Yereri (CACC 19/2010).
False Imprisonment
5–558 This offence is punishable, at common law, with a maximum sentence of 7 years’
imprisonment. See HKSAR v Lim Hay Bun, Benny [2000] 1 HKC 612; Secretary for Justice
v Yiu Man Chun [2011] 3 HKC 125.
False Trademark
5–559 In Secretary for Justice v Lam Chi Wah [1999] 4 HKC 343, the Court of Appeal sent
out a serious warning that, in future, hawkers and small traders of counterfeit goods
risked heavy fines, which need not be linked to the value of the goods themselves: see
HKSAR v Fong Tat Wing (HCMA 312/2008, [2008] HKEC 1267). Imprisonment will
often be appropriate: HKSAR v Collamar Eliza Turla (HCMA 1027/2008, [2009] HKEC
107). Much, however, will depend on the scale of the operation: HKSAR v Ng Ka Yiu
[2015] 2 HKLRD 1148.
Firearms and Ammunition Offences

5–560 In determining the appropriate sentence for possessing firearms and ammunition
without a licence, the mitigating or aggravating factors include: (a) the type of firearm
638
and ammunition involved; (b) whether the defendant physically carried the firearm
and ammunition; (c) whether the firearm was loaded; (d) whether the firearm had
been used; (e) whether the defendant intended to use the firearm for illegal pur-
poses; (f) whether the firearm and ammunition were properly stored or whether they
were easily accessible by offenders; and (g) whether the defendant had a clear re-
cord: HKSAR v Chan Chi Fun [2006] 1 HKLRD 128. In cases of this type, societal pro-
tection is a paramount consideration, and a deterrent sentence is required: Secretary
for Justice v Yan Shen [2012] 3 HKLRD 652.
Forcible Taking or Detention for Ransom

The offence of forcible taking or detention for ransom is punishable with a max- 5–561
imum sentence of life imprisonment. Sentences of less than 10 years are rare, while
sentences of 18 years, and more, are often imposed after trial: HKSAR v Kan Chan
Hung [2003] 2 HKLRD 708; HKSAR v Mohammad Nadim [2010] 1 HKC 281; HKSAR v
Zheng Xingwang [2017] 2 HKLRD 707. In HKSAR v Muhammad Rizwan [2019] HKCA
643 (CACC 232/2015), sentences of up to 19 years’ imprisonment were imposed for
a well-planned, professional criminal enterprise, where the victims were detained in
fear of their lives for three days. In HKSAR v Yang Chao [2019] 2 HKLRD 1287, [2018]
HKCA 588, where a forcible taking occurred as part of a robbery, a starting point of
15 years’ imprisonment was adopted.
Forgery
The offence of forgery is punishable with a maximum sentence of 14 years’ im- 5–562
prisonment. In HKSAR v Chan Chun Chuen (CACC 233/2013, [2015] HKEC 2246), a
sentence of 12 years’ imprisonment was imposed upon a defendant who forged a will.
Fraud
The offence of fraud is punishable with a maximum sentence of fourteen years’ 5–563
imprisonment, and substantial sentences of imprisonment are the norm: Secretary for
Justice v Dank [2008] 4 HKC 483 (breach of trust); HKSAR v Ho Ka Keung (No 2) [2009]
1 HKC 88 (commercial fraud); HKSAR v Ma Bo Kee (CACC 458/2010, [2012] HKEC
1723) (fraud of worst kind); HKSAR v Yu Lai Lai (CACC 242/2013, [2013] HKEC
1027) (banking fraud); HKSAR v Tsang Pui Yee, Shirlina (CACC 349/2013) (rogue
trader); HKSAR v Fan Ming Kei, Anthony (CACC 319/2015) [2016] HKEC 2757 (fraud
on insurance company); HKSAR v Chong Hung Shek [2019] HKCA 451 (CACC 168/
2018) (fraud by solicitor’s clerk on clients).
Gambling
The offence of bookmaking will, save in minor cases, usually attract a sentence of 5–564
imprisonment, often coupled with a fine: HKSAR v Leung Chi Fai [2013] 6 HKC 151.
Imprisonment is common, backed by a fine, for the offence of operating a gam-
bling establishment: HKSAR v Lam Oi Lam [2013] 4 HKLRD 324. Cheating at gam-
bling is invariably punished severely: HKSAR v Chan Wai Sheung [2007] HKCLRT
336. First offenders convicted of unlawful gambling often receive fines, although
recidivists face imprisonment: Attorney General v Ho Sik Yan [1984] HKLR 327; R v
Choi Kai On [1995] 1 HKCLR 79. Fines are the norm for persons convicted of gam-
bling in unauthorized places: HKSAR v Kung Wai Tat (HCMA 105/2006, [2007]
HKEC 623).
Going Equipped for Stealing

This offence is punishable with a maximum sentence of three years’ imprisonment. 5–565
Although there are no sentencing guidelines for this offence, some degree of consist-
ency in sentencing is desirable, with a bad case attracting a starting point of 2½ years’
imprisonment: HKSAR v Li Ho Yin [2013] 3 HKC 505.
639
Grievous Bodily Harm
5–566 In HKSAR v Kwok Shu Ming [2004] 1 HKLRD 891, the defendant was convicted after
trial of inflicting grievous bodily harm. In a family dispute between the defendant and
his wife W, the defendant forcefully twisted W’s left arm and hand. As a result, W’s
left wrist and left distal radius sustained injuries and pain, and her left arm had to be
encased in a cast. The defendant was sentenced to four months’ imprisonment. It was
held that the fact the offence arose out of a family dispute was not a mitigating factor.
Although the defendant was a first offender, the sentence that he received could not
be considered excessive.
Handling Stolen Goods

5–567 This type of offence warrants a severe sentence. In determining the appropriate
sentence, the court should consider how the stolen goods were obtained and the
value of the goods (HKSAR v Man Cho Chuen (CACC 500/2003, [2004] HKLR (Yrbk)
345)). See also HKSAR v Cheng Chi Wai & Secretary for Justice v Cheng Chi Wai [2012] 4
HKLRD 360.
In HKSAR v Chiu Kwok Wai [2008] 1 HKLRD 284, a starting point of 4 years was not
excessive. D2 was not employed simply to deliver a stolen car, but had acted in concert
with others to handle two stolen cars. A certain degree of planning and sophistication
was involved. The fact that D2 was guilty of an attempt as opposed to the full offence
and had not benefited from the fruit of his crime was irrelevant to the sentence to be
imposed. The defendants’ acts and culpability remained exactly the same. See also
HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360, in which a sophisticated operation
involving the handling of stolen vehicles moved the case close, in terms of seriousness,
to the primary offence of actually stealing the vehicles.
Aggravating features of the offence include the closeness in time of the handling
act to the original offence, the high value of the stolen goods, the high degree of
sophistication employed, the high level of profit that a handler could make, the pro-
vision of regular outlet for stolen goods, and the cross-border element. On the other
hand, mitigating factors include, that defendant not being an organizer or distributor
of the proceeds of the crime, the absence of advance knowledge of the theft, and the
defendant’s good character: HKSAR v Ho Wing Yin [2010] 2 HKLRD 343.
Ill-treatment or Neglect of Child under Custody, Charge or Care

5–568 This offence is punishable with 10 years’ imprisonment, and immediate custodial
sentences are often appropriate: see Secretary for Justice v Lam Lui-yin [2007] 1 HKLRD
248; HKSAR v Ding Yuk Kwan [2009] 1 HKC 36.
Immigration Offences
5–569 In R v So Man King [1989] 1 HKLR 142, a guideline tariff of 15 months’ imprison-
ment after a guilty plea was approved for the offence of unlawful remaining in Hong
Kong, contrary to s 38(1) of the Immigration Ordinance (Cap 115). This is now “the
standard sentence”: HKSAR v Nguyen Anh Cuong [2012] 4 HKC 29. In Att-Gen v Ng
Kin Hung [1991] 1 HKLR 81, this tariff was extended to other immigration offences,
including attempting to land in Hong Kong without permission. For repeat offenders,
there are staged increases in the starting point for sentence: HKSAR v Lee Chiu Yui
[2015] 1 HKLRD 323.
The offences of unlawful remaining and breach of a deportation order may share
the same underlying criminality, in which case concurrent sentences are appro-
priate: HKSAR v Bui Van Khai [2013] 2 HKLRD 471.
The offence of breaching a deportation order is punishable with a maximum pen-
alty of 7 years’ imprisonment on indictment, under s 43(1)(a)(i) of the Immigration
Ordinance (Cap 115), and in HKSAR v Nguyen Anh Cuong [2012] 4 HKC 29, the
defendant was told, on appeal, that if he unlawfully entered Hong Kong again,
“in defiance of the deportation order, a starting point well in excess of 3 years im-
prisonment for this offence alone is likely to be adopted”. In HKSAR v Joned Asri
640
(CACC 345/2012, [2013] HKEC 551), a sentence of 33 months’ imprisonment was
imposed upon a defendant who pleaded guilty to multiple offences of breach of a
deportation order.
For employing someone not lawfully employable, contrary to s 17I of the
Immigration Ordinance (Cap 115), when the offence involves a single employee, with
full knowledge or recklessness as to the employment of a prohibited person, employ-
ment on a casual basis and no aggravating features present, a three-month imme-
diate custodial sentence after trial is appropriate. This sentence refers to a first time
offender; the relevant employment relates to the employer’s commercial or business
interests; and employment on a casual basis means a short term, temporary and one-
off employment, that is days, not weeks or months. As to knowledge, given that all
employers should realise the need to see identification documents before a person is
hired, short of deception, it is difficult to see how an employer can say that he does
not have the requisite knowledge or is not reckless. The guidance of three months’
imprisonment after trial is applicable in the absence of any aggravating or mitigating
circumstances. Recognised aggravating features include an element of exploitation,
multiple employment or that the offence is a repeat one. The presence of such ag-
gravating features would in most cases substantially increase the guideline sentence.
As for mitigating factors, employing a relative or clansman does not of itself amount
to mitigation. However, it is better to leave the identification of mitigating factors to
the wisdom and experience of magistrates who have the day-to-day conduct of such
offences and therefore know-ledge of the very circumstances under which they can
be committed: Secretary for Justice v Ho Mei Wa [2004] 3 HKLRD 270. The manner of
the introduction of the person to the defendant does not justify a reduced starting
point: HKSAR v Lo Man Wing (HCMA 1041/2004 [2005] 3 HKLRD I5).
The starting point for using a forged travel document is 27 months’ imprison-
ment: HKSAR v Rakesh Kumar Sthapak [2005] 1 HKLRD 643. See also HKSAR v Pahila
[2007] 1 HKLRD 410. The degree of culpability for the offence of possessing a false
instrument will depend on the motive for and the purpose of possessing the instru-
ment as well as the nature and function of the instrument. An offence of possessing a
false passport, travel document or identity document is more serious than an offence
of possessing a false visa, which merely allows the visa holder to enter the country in
question. The starting point for an offence of possessing a false passport, travel docu-
ment or identity document is 27 months’ imprisonment. The appropriate starting
point for an offence of possessing a false visa is 12 months’ imprisonment: HKSAR v
Guo Fuan [2005] 4 HKLRD 279; HKSAR v Hazrat Rahman (HCMA 872/2006 [2007]
HKEC 9). In HKSAR v Serradj Kamel [2018] HKCFI 1023 (HCMA 648/2017, [2018]
HKEC 1393), a starting point of 15 months’ imprisonment was approved for using a
passport bearing a forged Hong Kong Immigration Arrival Stamp impression.
In HKSAR v Ma Ming [2013] 1 HKLRD 813, a starting point for sentence of
4½ years’ imprisonment was approved for an offence of conspiracy to aid, abet,
counsel and procure the transfer to another of travel documents (10 Hong Kong
passports).
In the absence of exceptional circumstances, the sentence after a guilty plea to
possession of a forged identity card or a card belonging to another will be 12 months’
imprisonment, irrespective of whether the offender is lawfully staying in Hong Kong.
Where a forged identity card is displayed or used for seeking illegal employment
or extending the period of stay in Hong Kong, the sentence upon plea should be
15 months’ imprisonment. Where there are exceptional mitigating factors, the court
should exercise discretion as appropriate in determining sentence: HKSAR v Li Chang
Li [2005] 1 HKLRD 864; see also HKSAR v Fu Wai Lun (HCMA 650/2006, [2007]
HKLRD (Yrbk) 371); The distinction between possession simpliciter and the actual
use of the forged document, for sentencing purposes, is canvassed further in HKSAR
v Tran Viet Thanh [2012] 1 HKLRD 903. Unlawful possession of another person’s iden-
tity card is “a serious offence”, even without criminal intent: HKSAR v Chung Ka Wai
[2018] 2 HKLRD 1090.
For a failure to inspect the documents of a new employee, as required by s 17J of the
Immigration Ordinance (Cap 115), see HKSAR v Luk Wah Wah [2008] 5 HKLRD 762,
which indicates that sentence is linked to the actual degree of culpability.
641
In the overstaying cases, it is the length of the overstaying and the question of
whether employment is taken up during that period which are the relevant factors
in sentencing. Sentencing based upon a mathematical progression of sentences in
similar cases is not the correct approach. Further, it is not right to consider in a par-
ticular case the exact number of years and months of overstaying and a global view
should be adopted of whether the overstaying is substantial or short: HKSAR v Maria
Melba Celada Accion (HCMA 339/2005, [2005] HKEC 924).
The principles for sentencing in breach of condition cases were considered in
HKSAR v Manalad Tiongson Patricia [2002] 1 HKRLD 681, which held that a court
would look at the length of the overstay, with the taking up of employment being
an aggravating factor. In HKSAR v Siti Iftakurohmah [2014] 4 HKC 6, a sentence of
3 months 3 weeks’ imprisonment was upheld for a defendant who pleaded guilty to
a breach of condition of stay, and overstayed for 4 years 8 months, with the length of
the overstaying being called “a crucial factor in sentencing”, per Poon J. In HKSAR v
Plathanthirige (HCMA 541/2015, 19 October 2015), it was said that a starting point of
9 months’ imprisonment for a breach of condition of stay involving an overstayer of
5 years 7 months was “within the reasonable range”.
In HKSAR v Bodomo Marissa Flores [2005] 4 HKLRD 285, it was noted that a starting
point of 6 months’ imprisonment is customary for a misrepresentation to immigration
officers which does not involve the use of false travel documents.
In HKSAR v Li Sau Mei (HCMA 279/2005, [2005] CHKEC 576), the defendant
pleaded guilty to making a false representation to an immigration assistant. In 1997
she entered Hong Kong with a permit that bore her name but a wrong date of birth.
The magistrate adopted a starting point of 15 months’ imprisonment and reduced
the term to 10 months on account of plea. It was held that given that the date of birth
was an important aspect of a person’s identity, and having regard to the fact that the
defendant had knowledge of the mistake on the permit and committed the offence
with the intention of overstaying in Hong Kong, the starting point adopted by the
magistrate was not manifestly excessive.
If a defendant uses a false travel document in an attempt to deceive an immigration
officer, it is no mitigation that he did so as he needed to stay in Hong Kong to look
after his daughter: HKSAR v Wong Mui [2014] 2 HKLRD 1140.
In Gumamit v HKSAR [2006] 1 HKLRD 1, the defendant, a Filipino national,
pleaded guilty to conspiracy to defraud, involving the use of a forged Hong Kong
identity card, a visa and immigration stamps, a false letter of employment and a
false bank passbook, all designed to defraud the Consulate General of Japan, and a
starting point of 3 years’ imprisonment was upheld. It was said that the courts have
a duty to protect so far as possible the integrity of the visa application system, and
Hong Kong’s reputation would be tarnished if it was used as a base for launching
false visa applications.
There is little logic in distinguishing levels of sentence for offences of using a false
passport to enter Hong Kong, contrary to s 42(2) of the Immigration Ordinance (Cap
115), and of making a false statement to an immigration officer by way of producing
a false passport, contrary to s 42(1). Sentences “after plea of up to 18 months’ impris-
onment are justified” in respect of both sorts of offences: HKSAR v Pahila [2007] 1
HKLRD 410. See also HKSAR v Yim Lee Kuen (HCMA 1187/2002, [2003] HKEC 308),
where it was noted that, depending on the actual circumstances, “starting points of
sentence of 18 months’ imprisonment are certainly justified in the circumstances of
the present offences, involving the production of a false two-way permit to gain entry
to Hong Kong. Indeed, on the authorities, starting points of sentence even higher
than that would be justified”.
In HKSAR v Usman Butt [2011] 1 HKC 12, the Court of Appeal provided authorita-
tive guidance to trial courts for the sentencing of persons convicted of the new offence
of taking up unlawful employment (Cap 115, s 38AA). This offence was enacted in
November 2009, and carries a maximum penalty of 3 years’ imprisonment, and a fine
at Level 5. The Court held that this offence ought normally to attract a sentence of
15 months’ imprisonment, after a guilty plea, and that the sentencing level should be
aligned to the level previously approved for the offence of unlawful remaining (see
also R v So Man King [1989] 1 HKLR 142).
642
Schemes making use of Hong Kong’s position as a hub of communication to assist
illegal immigrants to enter a third country involve sophisticated planning and tarnish
Hong Kong’s international reputation. The culpability of the offender is related to the
precise role played in the offence: HKSAR v He Wen You [2009] 3 HKLRD 445.
Human trafficking usually involves a variety of offences, and the maximum penalty
is based on the most serious of the charges laid. See HKSAR v Hung Kong Nam (CACC
346/2006, [2007] HKEC 1573), HKSAR v He Wen You [2009] 3 HKLRD 445, HKSAR v
Lee Shinwon [2012] 1 HKLRD 283.
Import and Export Offences

In R v Tsui Shek On [1991] 1 HKPLR 346, it was stated that deterrent sentences are 5–570
necessary for offences of this type.
In HKSAR v Yau Yik Wai (HCMA 1037/2003), the defendant pleaded guilty to
dealing with dutiable commodities, namely 118,000 cigarettes. The magistrate sen-
tenced the defendant to eight months’ imprisonment in view of the seriousness of the
offence. It was held that there were no specific sentencing guidelines for this type of
offence. The magistrate had duly taken into account all relevant factors, including the
defendant’s clear record, in imposing the sentence he did.
In HKSAR v Tse Yuk Wah (HCMA 1071/2006, [2007] 2 HKLRD D7), the defendant
pleaded guilty to attempting to export unmanifested cargo. He drove a truck to the
Lok Ma Chau control point, intending to leave the Hong Kong territory. Customs of-
ficers at the control point found, inside the truck, 6 cartons of undeclared goods, the
total value of which exceeded $1,040,680. The magistrate adopted a starting point of
15 months’ imprisonment and reduced the term to 10 months on account of plea. It
was held that the offence was serious in that the defendant intentionally smuggled
goods with a total value exceeding $1 million. An immediate custodial sentence was
eminently justified and correct in principle. The starting point was not manifestly ex-
cessive. While lack of knowledge of what was being transported could be a mitigating
factor, it did not apply here since it was clear that the defendant chose not to declare
goods that he very well knew had to be declared.
In HKSAR v Kwok Chu Ho [2007] 1 HKC 491, a sentence of 15 months’ imprison-
ment after trial for attempting to export unmanifested cargo was held to be within the
tariff, and not manifestly excessive.
Incest
If a man has sexual intercourse with a woman who to his knowledge is his grand- 5–571
daughter, daughter, sister or mother, the maximum sentence is 14 years’ imprison-
ment; if the woman is under the age of 16 years but is of or above the age of 13 years,
the sentence rises to 20 years’ imprisonment; if the woman is under the age of 13 years,
the maximum sentence is life imprisonment. If a woman of or over 16 years consents
to incest the maximum sentence is 14 years’ imprisonment.
In HKSAR v Lam Chung Tak, Jemy [2008] 1 HKC 281, where a father had sexual
inter-course with his pre-teenage daughter, a starting point for sentence of 9 years’
imprisonment was adopted. In HKSAR v CYL (CACC 113/2015, [2015] HKEC 2516),
a father who impregnated his 17-year-old daughter was sentenced to 6 years 8 months’
imprisonment, following a guilty plea).
(See also Cross & Cheung’s Sentencing in Hong Kong (9th Ed., LexisNexis,
[App-173]).
Inciting Another to Conspire with Others to Possess

Unlawful Travel Documents
In HKSAR v Huang Alan [2005] 1 HKLRD 418, the defendant was convicted after 5–572
trial of inciting another person to conspire together with others to possess, and of actu-
ally possessing, forged, false or unlawfully obtained or altered travel documents. In the
course of several conversations with an undercover ICAC officer (R) posing as a cus-
tomer, the defendant, who operated a company that purportedly assisted customers to
obtain foreign passports, indicated that he was able to arrange for emigration for R’s
643
sister using false information. Upon arrest, he was found keeping a key to a safety de-
posit box which contained two forged foreign passports. The defendant was sentenced
to five years’ imprisonment for the incitement offence and two years’ imprisonment
for the possession offence, with nine months to run consecutively, making a total sen-
tence of five years and nine months’ imprisonment. It was held that obtaining foreign
passports by unlawful means was a serious offence which warranted a severe sentence.
That said, the incitement offence here was an inchoate offence, and the conspiracy
was not carried out. An appropriate sentence would be four years’ imprisonment.
Similarly, the sentence in respect of possession, as opposed to using, forged travel
documents was manifestly excessive. An appropriate sentence would be 12 months’
imprisonment. Accordingly, the total sentence was reduced to four years and nine
months’ imprisonment. See also HKSAR v Ma Ming [2013] 1 HKLRD 813.
Indecent Assault
5–573 There is no usual tariff for indecent assault since the circumstances of each of-
fence can vary considerably. The three paramount sentencing considerations are de-
terrence, public abhorrence of such offences, and the need to redress the grievance
suffered by the victim and their relatives and friends: HKSAR v Chan Chuen Hin [2004]
2 HKLRD 339. The taxi driver who indecently assaults a passenger will face condign
punishment, not least because of the element of breach of trust: HKSAR v Ho Tung
Yuen [2011] 5 HKC 586. A deterrent sentence is required where the indecent assault
falls just short of rape, as where the victim is unconscious: Secretary for Justice v Lee Yun
Kin, Thomas [2017] 5 HKC 342.
Generally speaking, where the offence involves an indecent assault on a child by an
elder, relative or someone responsible for taking care of the child, the court will pass
a severe sentence – usually an immediate custodial sentence – so as to serve deterrent
purposes: Secretary for Justice v HKL [2004] 3 HKLRD 235; see also Tin Siu Hung [2006]
1 HKLRD 29.
For the offence of sexual assault upon children, the appropriate sentence must
depend on the circumstances of the particular case and previously decided cases
will not necessarily assume much importance as sentencing guidelines. However,
justice and fairness require the court not to impose inconsistent sentences for
offences of a similar degree of seriousness: see HKSAR v Ng Ngok Wai [2008] 1
HKLRD 546.
In HKSAR v Chau Shu-ho [2008] 5 HKLRD 796, the defendant, aged 43, was
convicted after trial of four counts of indecent assault and one count of common
assault. The defendant met the victim, a 10-year-old boy, in a public library and
represented that he was a teacher. The victim later invited him home and the de-
fendant eventually moved in with the victim and his family. The victim was trau-
matised by the assaults, and 8 years’ imprisonment was upheld. (See also HKSAR
v Cheung Kwok Yip, Peter [2010] 3 HKC 470, for an act of the grossest indecency on
a 12-year-old girl, and HKSAR v Chow Yuen Fai [2010] 1 HKC 181, for assaults on
underaged boys, accompanied by aggravating factors). In HKSAR v Lee Kwok Wai
[2012] 2 HKLRD 239, the factors for consideration in the sentencing of a paedo-
phile who committed indecent assault and homosexual buggery on young children
were reviewed.
The need to protect children is the main sentencing consideration: Secretary for
Justice v Huang Long Wei [2009] 3 HKLRD 136.
Kidnapping
5–574 Kidnapping, contrary to common law, is punishable with a maximum penalty
of 7 years’ imprisonment. It stands in contrast to the far more serious offence of
forcible taking or detention for ransom, which is punishable with life imprison-
ment, and with which it is sometimes confused: HKSAR v Tam Ping Nam (CACC
161/1992). Kidnapping often accompanies another offence, such as rape. See R
v Ng Ping Shun [1988] 1 HKC 229; HKSAR v Li Chung (CACC 239/2003, [2003]
HKEC 1297).
644
Living on Earnings of Prostitution
This offence is punishable with a maximum sentence of 10 years’ imprison- 5–575
ment: section 139, Crimes Ordinance (Cap 200).
The element of control exercised over the daily activities of prostitutes and in run-
ning the operation is arguably the single most significant feature in arriving at an ap-
propriate sentence: see HKSAR v Chan Yuk Bun [2009] 2 HKC 53.
In HKSAR v Yau Wai Man [2010] 3 HKC 503, sentences in the region of 3 years’ im-
prisonment were approved in circumstances where the accused, who pleaded guilty,
had practised a cruel and cynical deception upon an 18-year-old female, who suffered
from mild grade mental retardation, in order to persuade her to work for them as a
prostitute.
The element of control exercised over the daily activities of prostitutes and in run-
ning the operation is arguably the single most significant feature in arriving at an ap-
propriate sentence: see HKSAR v Chan Yuk Bun [2009] 2 HKC 53.
Loitering
In HKSAR v Au Pak Chung (HCMA 586/2009, [2009] HKEC 1664), the defendant 5–576
was convicted of loitering causing concern, causing the victim reasonably to be con-
cerned for her safety or well-being. ’ A short custodial sentence was appropriate, given
the nature of the offence, the defendant’s previous record and the need for deter-
rence. In HKSAR v Chu Hoi Shuen [2017] 5 HKC 184, four months’ imprisonment was
adopted as the starting point for sentence in a case of loitering with intent.
Making counterfeit notes with intent

Substantial sentences of imprisonment are the norm for this offence: see HKSAR v 5–577
Wong Hoi Yat [2006] 3 HKLRD 150; HKSAR v Hu Wanxia [2009] 4 HKLRD 449.
Maliciously Sending Threatening Letters to Kill or Murder

This offence is viewed with great seriousness, and will invariably attract condign 5–578
punishment: HKSAR v Ma Chiu Sing [2004] 2 HKLRD 974; HKSAR v Wong Yun Wan
[2011] 2 HKC 288.
Managing Unlicensed Massage Establishment

In HKSAR v Minshell Ivy (HCMA 835/2008, [2009] HKEC 327), the defendant 5–579
pleaded guilty to managing an unlicensed massage establishment, and 3 months’ im-
prisonment was held to be an appropriate starting point.
Manslaughter
This offence is punishable with a maximum sentence of life imprisonment, al- 5–580
though the circumstances in which it occurs are so variable that sentences differ
markedly. Although it is sometimes difficult to indicate a starting point for sentence,
this should nonetheless be done “wherever possible”: HKSAR v Husnain Safdar [2020]
HKCA 454 (CACC 39/2018) (15 years’ imprisonment as the starting point in a case of
manslaughter by diminished responsibility).
Examples of the different types of manslaughter are provided by: HKSAR v Liu Kwai
Wing [2002] 2 HKC 388 (arson); HKSAR v Chiu Wai Kan [2011] 5 HKC 519 (dimin-
ished responsibility; for the principles see R v Wood [2010] 1 Cr App R (S) 2); HKSAR
v Law Chung Hin [2012] 1 HKLRD 450 (gang fight); Secretary for Justice v Law Siu Kuen
[2011] 1 HKLRD 1022 (motor vehicle); HKSAR v Yip Kai Ming (CACC 414/2009,
[2010] HKEC 1693) (provocation); HKSAR v Lin Siu Lun [2009] 6 HKC 308 (unlawful
act); HKSAR v Tsang Man Wai, Raymond [2017] 4 HKC 419 (unlawful act); HKSAR v
Nawaz Ahsan [2019] HKCA 459 (CACC 121/2018) (unlawful act; “close to murder”;
10 years’ imprisonment, after guilty plea).
645
In Hobbs and DM v R [2018] EWCA Crim 1003, the principles applicable to man-
slaughter in England and Wales are reviewed, at [23]-[30].
(See also Cross & Cheung’s Sentencing in Hong Kong (9th Ed., LexisNexis), [App-120].)
Misconduct in Public Office

5–581 This offence is punishable with 7 years’ imprisonment. In HKSAR v Ho Hung Kwan,
Michael (2013) 16 HKCFAR 16, Chan ACJ said “this offence is aimed at punishing an
abuse by a public officer of the power and duty entrusted to him for the public benefit
of his official position” at [26]. The offence is always treated seriously, and imprison-
ment is the norm: Secretary for Justice v Shum Kwok Sher [2001] 3 HKLRD 386; HKSAR
v Sin Kam Wah (CACC 520/2003, [2008] HKEC 1288); HKSAR v Chow Koon Shing
[2007] 3 HKLRD 10; HKSAR v Tang Kwai Man [2013] 6 HKC 350; Secretary for Justice v
Wong John [2014] 2 HKLRD 278; HKSAR v Rafael Hui Junior (2017) 20 HKCFAR 264,
[2017] 4 HKC 283. In HKSAR v Tsang Yam Kuen, Donald [2018] 5 HKLRD 564, [2018]
HKCA 425, a starting point of 20 months’ imprisonment was adopted where a high
ranking government official deliberately concealed a conflict of interest, knowing this
was wrong, and which had harmed public confidence in the integrity of the system,
albeit that the official had not acted corruptly.
Money Laundering
5–582 Given the widely varying circumstances in which offences of money-laundering may
be committed, it is not possible to articulate guidelines for sentence. However, some
of the factors that may be relevant in determining the culpability of a defendant in-
clude: (1) the nature of the offence that generates the laundered money; (2) the ex-
tent to which the offence assists the crime or hinders its detection; (3) the degree of
sophistication of the offence and perhaps the defendant’s participation, including the
length of time the offence lasted; (4) the benefit he derives from the offence; (5) the
amount of money involved; (6) the number of offences involved; and (7) whether
or not it was an organized and sophisticated crime: see HKSAR v Jain Nikhil [2007]
2 HKLRD 640; Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201. If the de-
fendant is unaware of the actual source of the money laundered, this is not necessarily
a mitigating factor, but if the evidence shows that the money is actually illicit money
and that the defendant knew that this was so then this is an aggravating factor: Secretary
for Justice v Lau Man Ying [2012] 4 HKLRD 435. Significant incitement to money laun-
dering is also a serious matter: HKSAR v Jariabka Juraj [2017] 2 HKLRD 266
The ambit, nature and gravity of the money laundering offence have now been
reviewed, and, although the District Court has traditionally been seen as the most
appropriate venue for trial, it is now clear that, in the worst cases, as where there is
an international dimension, or the offence is sophisticated, or the crime has been
committed by an organized criminal syndicate, the High Court is an appropriate
venue: HKSAR v Boma Amoso [2012] 2 HKLRD 33.
Where a defendant is convicted of dealing with property knowing or having reason-
able grounds to believe it represented proceeds of an indictable offence, it is that of-
fence for which he should be sentenced. It is wrong as a general principle to sentence
a defendant for an offence with which he is not charged, although where the under-
lying offence is of a particularly serious nature, his dealing with the profits of such
an offence may well be an aggravating factor and require an enhanced sentence as a
matter of policy and general deterrence: HKSAR v Yam Kong Lai [2008] 5 HKLRD 384.
The relationship between the predicate offence and the money laundering must
be carefully considered in the formulation of the charges. A money laundering of-
fence should be added if this is necessary to reflect the full culpability of the de-
fendant: HKSAR v Chan Kim Chung, Nelson [2012] 2 HKLRD 263. The circumstances
of the predicate offence will determine this, and it may be necessary for the judge
to ask the prosecutor why an additional charge is required to reflect the full culp-
ability of the defendant. See also HKSAR v Cheung Sze Wah (CACC 301/2009, [2012]
HKEC 1138).
An effective anti-money laundering regime, in which deterrence is the paramount
sentencing consideration, is one which reduces the predicate offences themselves,
646
as well as the profits: HKSAR v Ng Man Yee [2014] 4 HKC 241. Save in exceptional
cases, an immediate custodial sentence is required by deterrence in money launder-
ing cases: Secretary for Justice v Siu Sun Yee [2017] 3 HKLRD 678. In Secretary for Justice
v Herzberg [2010] 1 HKLRD 502, the factors relevant to culpability are reviewed, to-
gether with the impact of deterrence in sentencing for this offence. The sentencing
considerations involved where the offence has an international dimension include
amount, culpability, duration and damage to Hong Kong’s reputation: HKSAR v Hsu
Yu Yi [2010] 5 HKLRD 545.
Money Lending
Loan sharking is a serious problem, and the courts impose severe penalties on of- 5–583
fenders: R v Lui Sau Cheong [1993] 2 HKCLR 298. Guidance on sentencing was pro-
vided in HKSAR v Wan Chi Wai (CACC 105/1999, [1999] HKEC 669). In HKSAR v
Cheung Wing Lam (CACC 32/2004, [2004] HKEC 818), a sentence of 18 months’ im-
prisonment was imposed on a loan shark.
Murder
In HKSAR v Harman Preet (CACC 190/2004, [2005] HKEC 419), the defendant, 5–584
who was two weeks short of 18, was convicted of murder. The judge exercised his dis-
cretion regarding persons aged under 18 pursuant to section 2 of the Offences against
the Person Ordinance, (Cap 212) and sentenced the defendant to life imprisonment.
A minimum term of 25 years was also imposed. It was held that this offence, with the
brutality which accompanied it and its overtones of a sexual assault on a defenceless
woman, required condign punishment. However, justice would be done if the min-
imum term to be served was reduced from 25 to 20 years’ imprisonment.
In HKSAR v Lip Pak Shing (CACC 415/2008, [2010] HKEC 24), the defendant was
16 years’ old at the time of the killing. He pleaded guilty to the offence of murder
and was sentenced to life imprisonment. A minimum term of 22 years’ imprisonment
was imposed. On appeal, the defendant argued that the Judge should impose a deter-
minate sentence rather than a life sentence. It was held that the weight that a plea of
guilty would carry would depend on all the circumstances, in particular, the gravity of
the offence itself and what in truth the plea signified. In the circumstances of the case,
the plea of guilty was not reflective of any remorse by the defendant of the gravity of
the crime. Given the facts surrounding the murder and in particular, the clear long-
term danger to the public presented by the defendant, the plea of guilty carried scant
weight in the decision whether to impose a determinate sentence. The court held that
the decision to impose a term of life imprisonment was impeachable. However, the
minimum term of 22 years was quashed, substituted by a term of 20 years.
In HKSAR v Lam Hon Man [2008] 5 HKC 108, a sentence of 29 years’ imprisonment
was imposed on a youth, aged 17 years at the time of sentence, who was convicted of
murder after trial. See also Chu Yiu Keung v HKSAR [2011] 6 HKC 87 (CFA).
Obscene and Indecent Articles

It is difficult to prescribe exact guidelines given the variety of circumstances per- 5–585
taining to offences relating to obscene and indecent articles. An immediate custodial
sentence may often be required as deterrence. This is because the standard of mor-
ality of society is such that material showing or suggesting explicit sexual activity of
any kind is still objectionable, despite our more open society. Further, the fact that
such material is readily available does not make the offence less serious. It is likely
that offences of this nature will continue to flourish unless people are deterred from
participating in this illicit business. In the absence of exceptional mitigating fac-
tors, a starting point of between nine and 12 months’ imprisonment is appropriate.
Prevalence of such offences should not be ignored, nor should the quantity involved.
Where the amount involved is more than one hundred, or a wide audience is targeted,
such as publication on the internet, the starting point will be adjusted upwards. Where
acts of utter depravity, such as bestiality, sex with children, sadism or necrophilia, are
involved, the starting point will also be adjusted upwards. Repeat offenders will receive
647
a higher sentence. However, it remains, to a large extent, a matter of discretion based
on the experience and common sense of the sentencing magistrate: see also HKSAR
v Law Fu Wing (HCMA 473/2003, [2003] CHKEC 778); Secretary for Justice v Mong Hon
Ming [2009] 4 HKLRD 298.
See also HKSAR v Easy Finder Ltd (HCMA 1010 of 2004), HKSAR v Wong Shiu Fai
(HCMA 1121 of 2005) [2006] 2 HKLRD E7, Secretary for Justice v HKDN Ltd [2007] 1
HKLRD 241, HKSAR v Wong Pan (HCMA 420/2009).
Obstructing Public Places

5–586 In HKSAR v Ho Pak Kui (HCMA 767/2003), the defendant, a hawker, pleaded
guilty to setting out or leaving an object, namely a metal cart, which obstructed
a public place. He had 123 previous similar convictions. He was fined HK$1,400.
It was held that hawkers who obstructed crowded public places must be subject
to deterrent sentences: a fine of HK$600 for first-time offenders, HK$1,000 for
second-time offenders, and more than HK$1,000 for persistent offenders such as
the defendant. See also HKSAR v Yip Sui Hing [2015] 4 HKLRD 901, where a res-
taurant owner whose tables obstructed a public street was fined HK$3,000.
Obtaining property/pecuniary benefits by deception

5–587 This offence is punishable with 10 years’ imprisonment. The offence can occur in
a variety of circumstances. For example, the evasion of liability through the use of
bouncing cheques will invariably attract imprisonment: HKSAR v Liu Ying Fai (CACC
451/1998). See also HKSAR v Kwan Po Keung [2012] 2 HKLRD 12. The fraudulent use
of genuine credit cards to acquire property is also a serious matter: HKSAR v Lam See
Chung, Stephen [2013] 5 HKLRD 242.
In HKSAR v Kum Chi Wing (CACC 445/2006, [2007] HKEC 906), the defendant
pleaded guilty to obtaining pecuniary benefits by deception and fraud. The de-
fendant used a forged Hong Kong identity card to obtain six credit cards, which he
sued over four years. The defendant made periodic payments towards the bills. He
eventually surrendered to the police and resigned from his job, expecting shortly
to be imprisoned. The credit card companies sustained total loss of about $220,000,
mostly in unpaid interest. The Deputy Judge adopted a starting point of 3 years’
imprisonment, gave a total discount of 50% (comprising a one-third discount for
the defendant’s guilty plea and a further discount of six months for the defendant’s
clear record, partial restitution and his surrender to the police) and sentenced the
defendant to 18 months’ imprisonment. It was held that the loss of unpaid interest
was just as real and serious a loss as that of the principal. Credit was the life blood of
commerce and interest was the rent that one paid for the use of money. The appeal
was dismissed.
Outraging Public Decency

5–588 The offence of outraging public decency is punishable at common law with a max-
imum sentence of 7 years’ imprisonment. It will often attract imprisonment: HKSAR v
Lo Hoi Chi [2007] HKCLRT 762; HKSAR v Kim Eung Who [2015] 4 HKC 293.
Perjury
5–589 The offence of perjury is punishable with a maximum penalty of 7 years’ impris-
onment. It is always treated seriously, as it affects the administration of justice. See
HKSAR v Kanjanapas, Chong Kwong Derek [2009] 6 HKC 135.
Perverting the Course of Public Justice

5–590 This offence is punishable with imprisonment for any term and a fine of any
amount, subject only to the court’s sentencing jurisdiction: s.101I of the Criminal
Procedure Ordinance (Cap 221). (See also s.15 of the Statute Law (Miscellaneous
Provisions) Ordinance 2008 (Ord. No 10 of 2008), effective 9 May 2008).
648
In Secretary for Justice v Wong Kwok Kau [2004] 3 HKLRD 208, the defendant pleaded
guilty to trafficking in 845.74gm of heroin. The judge adopted a starting point of
21 years’ imprisonment, and, after plea, reduced this to 7 years’ imprisonment. The
substantial discount was because of alleged assistance he had given to the police,
which resulted in the seizure of over 8kg of ice worth HK$4 million. In fact, the assist-
ance was misleading as the defendant, together with a police officer, set up a bogus
drug trafficking operation in order to attract a sentencing discount. He subsequently
pleaded guilty to conspiracy to pervert the course of public justice, and received
4 years 8 months’ imprisonment. As the trial judge would have imposed a sentence of
14 years’ imprisonment, but for the deception, the 7-year sentence was quashed and
replaced with 14 years. The two sentences would run consecutively, making a final sen-
tence 18 years and 8 months’ imprisonment.
In Secretary for Justice v Brian Alfred Hall [2013] 5 HKC 202, the defendant’s offences
evidenced a campaign to undermine the administration of justice, involving serious
allegations against serving correctional services officers, and, as such, “were serious
offences of their kind”, per Stock VP.
In HKSAR v Yuen Sun Wing [2010] 3 HKLRD 145, it was held that courts could
seriously consider a deterrent sentence of 3 to 6 months’ immediate imprisonment
for first offenders who, after committing road traffic offences, evaded disqualification
from driving using substitutes, and for those who acted as substitutes with a higher
penalty if they replaced more than one person. The penalty for intermediaries should
also be increased if they arranged for more than one person to act as substitutes or to
be substituted.
In Secretary for Justice v Wong Chi Wai [2012] 3 HKC 361, a case involving a barrister
who sought to intimidate a solicitor from testifying against his client and was sen-
tenced to six months’ imprisonment, the Court of Appeal, per Stock VP, said: “The
judge recognized that the normal sentence for offences of attempting to pervert the
course of justice was one of immediate imprisonment; generally a substantial period,
though exceptional cases might warrant a suspended sentence or a community service
or a fine”.
Pharmaceutical and Poison Offences

There is no tariff for such offences, although imprisonment is not uncommon, given 5–591
the need to protect the public. See HKSAR v Li Hok Leung (HCMA 1001/2004), [2004]
3 HKLRD L11 and HKSAR v Cheung Mei Chau (HCMA 31/2006), [2006] 3 HKLRD
G6: see also HKSAR v Chan Hiu Tung (HCMA 340/2007), [2007] 3 HKLRD H9.
Possession of false passport

This offence is punishable with a maximum penalty of 14 years’ imprisonment, and 5–592
a fine of $150,000; section 42, Immigration Ordinance (Cap 115). In HKSAR v Pahila
[2007] 1 HKLRD 410, a sentence of imprisonment was approved for a defendant who
pleaded guilty to using a false passport to enter Hong Kong.
Possession of false instrument

Credit card fraud is a serious offence: R v Chan Sui To [1996] 2 HKCLR 128. The 5–593
possession of forged credit cards carries with it the potential for loss: HKSAR v Cheung
Ka Wo [2002] 2 HKC 517. Hong Kong’s international standing may be affected by this
type of offence: HKSAR v Cheng Sui Yin (CACC 468/2005, [2006] HKEC 1044). The
use of a false instrument is more serious than is its simple possession: HKSAR v Poon
Yiu Fai (HCMA 223/2009, [2009] HKEC 769).
If the offence is one contrary to s 33 of the Public Order Ordinance (Cap 245),
which is punishable with a maximum sentence of three years’ imprisonment, sen-
tences tend to range from 3 to 12 months’ imprisonment: HKSAR v Li Chi Lung [1995]
HKLY 468; HKSAR v Lau Wa Kuen (HCMA 523/2001, [2001] HKLRD (yrbk) 308);
HKSAR v Ip Chi Wang (HCMA 377/2003, [2003] HKEC 870); Secretary for Justice v Liu
Chi Yung [2007] 1 HKC 570; HKSAR v Chan Ming Lok [2009] 6 HKC 7. If, however, the
offence is one contrary to s 17 of the Summary Offences Ordinance (Cap 228), which
649
is punishable with a maximum sentence of 2 years’ imprisonment, somewhat lesser
penalties may result, although imprisonment is by no means uncommon: HKSAR v
Tsang Fuk Choi (HCMA 618/1997); HKSAR v Cheng Chi Wah (HCMA 1255/2004).
Possession of offensive weapons

5–594 In HKSAR v Lau Wan (HCMA 769/2005, [2006] HKLRD (Yrbk) 345), the de-
fendant pleaded guilty to, inter alia, possession of offensive weapons, namely three
knives, in a public place, contrary to s 33(1) of the Public Order Ordinance, (Cap
245). It was held that for both offences, a starting point of 2 years’ imprisonment
reduced to 16 months’ imprisonment for plea would be taken. In HKSAR v Thapa
Kishan [2013] 4 HKC 524, where a defendant held a chopper outside a bar without
lawful excuse, a starting point for sentence of 12 months’ imprisonment was adopted.
In HKSAR v Chan Yiu Shing (HCMA 377/2016, [2017] CHKEC 369), a sentence of
9 months’ imprisonment after trial was approved for a defendant who possessed five
bottles of liquid to cause discomfort for use in a demonstration).
For a defendant convicted of possession of an offensive weapon, contrary to s
17 of the Summary Offences Ordinance (Cap 228), a sentence of imprisonment of
2 months, suspended for 18 months, imposed after a guilty plea, was approved in
HKSAR v Chan So-ching [2014] 2 HKLRD 232, with the appeal judge setting aside an
additional fine on the basis that the defendant had not profited from the offence, this
being “at least a serious consideration” [37] (per A Wong DJ).
Possession of firearms and ammunition without licence

5–595 In general, this type of offence will attract a severe and deterrent sentence, for
the reason that firearms and ammunition posed a potentially grave danger to the
society. In determining the appropriate sentence, the mitigating or aggravating fac-
tors included: (a) the type of firearm and ammunition involved; (b) whether the de-
fendant physically carried the firearm and ammunition; (c) whether the firearm was
loaded; (d) whether the firearm had been used; (e) whether the defendant intended
to use the firearm for illegal purposes; (f) whether the firearm and ammunition are
properly stored or whether they are easily accessible by offenders; and (g) whether
the defendant has a clear record. The level of sentence depends on the court’s view
of the potential risk posed by the firearm and ammunition of the defendant’s back-
ground: see HKSAR v Chan Chi-fun [2006] 1 HKLRD 128. An immediate custodial
sentence is appropriate save in exceptional circumstances: Secretary for Justice v Yan
Shen [2012] 3 HKLRD 652; Secretary for Justice v Leung Kwok Chi (CAAR 6/2012, [2013]
HKEC 565). The maximum sentence of 14 years’ imprisonment is reserved for cases
involving multiple arms and ammunition, the use of arms and ammunition, or where
the defendant has a bad criminal record: HKSAR v Hu Quanwu [2011] 4 HKC 331.
In HKSAR v Wong Kwok Kin [2011] 5 HKC 479, where the defendant kept a firearm
and ammunition for another for financial reward, the real risk that the weapon would
be used for a criminal purpose was acknowledged, and a starting point for sentence of
12 years’ imprisonment was held to be appropriate.
Pretending to be Public Officer

5–596 An offence of pretending to be a public officer, contrary to section 22 of the
Summary Offences Ordinance (Cap 228), is punishable with a fine of $1,000 or six
months’ imprisonment.
In HKSAR v Wong Chung Ki (HCMA 653/2003, [2004] 1 HKLRD B13), the de-
fendant pleaded guilty to pretending to be a public officer, and it was said, on ap-
peal, that an appropriate range of sentence for this offence was between three and six
months’ imprisonment after trial.
In HKSAR v Tin Siu Hung [2006] 1 HKLRD 29, where the defendant pretended to be
a public officer in order to commit a sexual offence, the adoption of the maximum
sentence of six months’ imprisonment as the starting point was held to have been ap-
propriate, reduced to four months in acknowledgment of the guilty plea.
650
Public Assistance Fraud
Offences involving the obtaining of public assistance funds by deception have in- 5–597
creased and severe sentences are warranted in appropriate cases. The court should
first consider whether it is necessary to imprison the defendant. Where imprisonment
is appropriate, the court can still consider imposing a community service order or a
suspended sentence instead of imprisonment. In cases involving deliberate and con-
tinuous deception, an immediate custodial sentence should be imposed. In consid-
ering the appropriate sentence, the court should consider the following factors: (1)
whether the defendant pleaded guilty, (2) the amount involved and the length of
time over which the offence was committed, (3) the reasons for or the circumstances
leading to the offence – there is a clear difference between an application for public
assistance which was false ab initio and an application which was genuine but subse-
quently became false due to a change of circumstances, (4) the use to which the funds
obtained were put, (5) the past behaviour and conduct of the defendant, (6) circum-
stances personal to the defendant, such as illness, disability and family hardship and
(7) whether the defendant voluntarily repaid, in whole or in part, the funds obtained.
Where an immediate custodial sentence is considered appropriate, and the defendant
has not pleaded guilty, the appropriate length of sentence should be as follows: Less
than $50,000 – Less than 9 months; $50,000 to $100,000 – 9 to 15 months; $100,000 to
$200,000 – 15 to 24 months; More than $200,000 – More than 24 months: see Secretary
for Justice v Leung Wai Kei [2007] 2 HKLRD 89.
In HKSAR v Chiang See Wai [2010] 3 HKC 313, a case of CSSA fraud which caused
the Social Welfare Department to be deceived out of $16,684, a starting point for sen-
tence of 6 months’ imprisonment was adopted. In HKSAR v Chong Wing Hoi (HCMA
705/2011, [2012] HKEC 1166), a sentence of 7 months’ imprisonment was imposed
on an elderly claimant who obtained $37,014 in social welfare payments, after making
false statements to the government as to his actual situation.
Public nuisance
The offence of public nuisance is punishable with 7 years’ imprisonment and a 5–598
fine: common law and s.101I of the Criminal Procedure Ordinance (Cap 221). A term
of imprisonment is regularly imposed for this offence: HKSAR v Pearce [2006] 3 HKC
105 (serious disruption in Central by activist); HKSAR v Pearce [2009] 5 HKLRD 1 (ser-
ious disruption at Tsing Ma bridge by activist); HKSAR v Chow Pit Keung, Sydney [2010]
HKCU 614 (HCMA 610/2009) (blocking of airport’s vehicular access by protesters);
HKSAR v Tai Yiu Ting [2019] HKDC 568 (DCCC 480/2017) (“very serious” offence;
conspiracy and incitement; starting point for conspiracy of 18 months’ imprisonment).
Rape
The maximum sentence for rape is life imprisonment: s 118 Crimes Ordinance 5–599
(Cap 200). Substantial sentences are not uncommon: HKSAR v Cheung Lai Man
[2004] 2 HKLRD 473 (starting point of 18 years’ imprisonment). In some circum-
stances, an attempted rape may be treated at least as seriously as the completed
offence, if not more so: HKSAR v Tsang Chiu Yu [2012] 3 HKLRD 568 (starting
point of 12 years’ imprisonment). The fact that the offence occurred many years
previously “is not of itself significant”: Secretary for Justice v Leung Yuet Hung [2014]
3 HKLRD 304, per Stock VP [53] (attempted rape of child 19 years’ previously;
7 years 6 months’ imprisonment).
Rape is a grave offence that generally warrants a starting point of not less than five
years’ imprisonment: see HKSAR v Tai Yi Nam [2006] 1 HKLRD 468. If aggravating
factors are present, the sentence will be far higher: Secretary for Justice v Sukhmander
Singh [2000] 2 HKC 37. The fact that the victim is a mentally retarded person is an ag-
gravating factor: see HKSAR v LWK (CACC 110/2006, [2006] 4 HKLRD (Yrbk) 348).
If there is unprotected sexual intercourse, this will also be an aggravating factor, and
a rape is not less serious when committed in a place familiar to the victim: HKSAR
v Mahal [2012] 1 HKC 146. See also HKSAR v Singh [2012] 1 HKLRD 517; HKSAR
v Chow Kam Wah [2013] 1 HKLRD 377; HKSAR v Tsang Chiu Tak [2013] 1 HKLRD
651
427. A rape is aggravated by an abuse of trust and professional status, the absence of
a condom, and the video-recording of the crime: HKSAR v Man Yiu-fai [2019] HKCA
340. That the defendant was an asylum seeker is an aggravating factor: HKSAR v Azad
[2016] 6 HKC 1.
The most serious instances of rape will be visited with life imprisonment, with a
substantial minimum term of imprisonment: HKSAR v Chan Li Fat [2010] 5 HKC 341.
Riot
5–600 The offence of riot is punishable with 10 years’ imprisonment on indictment, and
5 years’ imprisonment and a fine of $5,000 on summary conviction: s.19, Public Order
Ordinance (Cap 245). The level of violence, the scale of the riot, the degree of pre-
meditation, and the numbers of people involved will influence the sentence: Att-Gen.
v Tse Ka Wah (No 2) [1992] 2 HKCLR 16; Secretary for Justice v Cheung Chun Chin [2002]
2 HKLRD 233; HKSAR v Leung Tin-kei [2020] 3 HKC 659, [2020] HKCA 275 (first in-
stance judgment at: HKSAR v Leung Tin Kei [2019] 1 HKLRD 1330). For sentencing
principles, see HKSAR v Tang Ho Yin [2019] 3 HKLRD 502, [2019] HKCA 611.
Road Traffic Offences

5–601 The sentencing of an offender convicted of a road traffic offence is considered in
Chapter 34, Road Traffic Offences (qv). (See also Cross & Cheung’s Sentencing in Hong
Kong (9th Ed., LexisNexis) [App-151]-[App-165].
Robbery
5–602 In Mo Kwong Sang v R [1981] HKLR 810, guidelines were prescribed for robbery.
The starting point for an armed robbery with a knife or other dangerous weapon
displayed to the victim is normally 5 years’ imprisonment; this includes the use of a
screwdriver: HKSAR v Andrianiaina [2017] 2 HKLRD 500. The starting point rises to
6 years if the robbery occurs in private premises. If physical violence is used on any of
the victims, the starting point is enhanced to 7 years’ imprisonment. These guidelines
may be increased if aggravating factors exist, such as an invasion of domestic premises
at night, the presence of more than one robber, threats to victims, ill-treatment of eld-
erly persons and children, and multiple offences of a similar kind. An unarmed rob-
bery is less serious than an armed robbery: HKSAR v Ting Chiu [2003] 3 HKLRD 378.
In Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312, it was held that the “head-
bashing” of the robbery victim warranted a starting point of not less than 8 years’
imprisonment.
A lift robbery without the use or display of weapons attracts a starting point of
4 years’ imprisonment: HKSAR v Ma Man Dick [2004] 1 HKLRD 1046. A taxi robbery
is punishable with 7 years’ imprisonment after a contested trial: R v Tran Van Nah
[1993] 2 HKCLR 122. A post office robbery is not as serious as a bank or jewellery
shop robbery, but is more serious than a street or domestic premises robbery: HKSAR
v Yip Hoi Kei [2005] 2 HKLRD 165. The sentence to be imposed is influenced by the
nature of the object used in the robbery: HKSAR v Au Chi Hong [2006] 2 HKLRD
310. An attempted bank robbery with the use of a hoax bomb may attract a starting
point of 12 years’ imprisonment: HKSAR v Mang Wei (CACC 4/2007).
A robbery involving the use of firearms is a “hideous” offence, and the use of an
imitation firearm makes little difference: Secretary of Justice v Lee Chun Ho, Jeef [2010] 1
HKLRD 84; HKSAR v Pau Lai Sing [2010] 3 HKLRD 233. Armed robbery with firearms
requires a severe deterrent sentence: R v Cheung Hon Chung [1995] 3 HKC 555. Bank
robbery is a “very serious offence”, sometimes justifying a starting point of 15 years’ im-
prisonment: HKSAR v Wong Wai Keung [2003] 3 HKLRD 39. The most serious armed
robbery may result in a sentence of life imprisonment: R v Ho Tung Shing [1994] 1
HKCLR 137.
The taking of PIN codes and ATM cards from robbery victims is a ‘considerable ag-
gravating feature’: HKSAR v Wang Wei (CACC 446/2009).
652
Youth is not a strong mitigating factor in cases of serious robbery, though extreme
youth, involving a defendant under the age of 15, might be: HKSAR v Law Ka Kit
[2003] 2 HKC 178.
Tax Evasion
Deliberate tax evasion is a serious offence which generally warrants an immediate 5–603
custodial sentence. The term of imprisonment will be proportionate to the amount of
tax involved: HKSAR v Lo Wan-kei [2008] 2 HKLRD 122. See also Att-Gen v Ma Lai Wu
[1987] HKLR 744; HKSAR v Pak Wan Kam [2002] 2 HKC 465.
Theft
The maximum penalty for theft is 10 years’ imprisonment, and the range of culp- 5–604
ability is wide.
The guidelines for sentencing for theft in breach of trust cases range from a high
of 10 years’ imprisonment, where over $15 million is involved, to less than 2 years’
imprisonment, where the sum involved is under $250,000, with a series of bands in
between: HKSAR v Cheung Mee Kiu [2008] 1 HKC 113 (as amended in HKSAR v Lee
Lai Kit, Kitty [2009] 6 HKC 271 and HKSAR v Yeung Chiu [2010] 3 HKLRD 339). See
also HKSAR v Hung Fan Kit [2013] 1 HKLRD 958, for a breach of trust not in the
worst category, and involving the theft of jewellery worth over $1 million. In HKSAR v
Cheung Curtis Ka Kim [2018] 1 HKC 419, a sentence of 8 ½ years’ imprisonment, im-
posed upon a defendant who operated a bogus investment scheme which defrauded
its victims of over HK$ 25 million and pleaded guilty to 13 theft charges, was said to be
“not a day too long” (per Macrae JA).
The defendant who commits theft by pickpocketing is liable, subject to aggravating
and mitigating factors, to a guideline sentence of between 12 to 15 months’ impris-
onment: HKSAR v Ngo Van Huy [2005] 2 HKLRD 1. Sentences will be liable to en-
hancement under s 27 of the Organized and Serious Crimes Ordinance (Cap 455) if
there is organised gang activity: HKSAR v Zhang Li Ping (CACC 403/2004); see also
HKSAR v Pham Bich Thuy [2010] 2 HKLRD 1177, where the Court of Appeal con-
firmed that the sentence could be enhanced when aggravating features were present.
These aggravating features included the use of a weapon, the commission of the of-
fence in crowded places, the commission of the offence in conjunction with another,
or where the accused was a repeat offender. In the case of pickpockets frequenting
Hong Kong from overseas to commit crime, a starting point of at least 2½ years’ im-
prisonment should be adopted: HKSAR v Tan Hong Sheng (CACC 238/2005, [2006]
HKEC 1040). In HKSAR v Chan Mei Yee (CACC 447/2009, [2010] 4 HKLRD (Yrbk)
380, [2010] HKEC 778), a starting point of 2½ years’ imprisonment was approved in
circumstances where a repeat offender acted in concert with a confederate to commit
the offence on a busy street. (See also HKSAR v Liu Lin Feng (CACC 206/2011, [2012]
HKEC 605). If a recidivist commits an opportunistic theft, an excessive enhancement
of sentence should be avoided: HKSAR v Wong Kang Sun [2014] 1 HKLRD 622. Theft
of a vehicle is “a serious crime”: HKSAR v Yu Chi Chiu [2017] 1 HKLRD 400 (starting
point of 3 years’ imprisonment appropriate).
There are no guidelines for shop theft as circumstances differ so greatly. Whereas a
first offender might receive a fine, a custodial sentence might be justified if organised
and professional shoplifting is involved: Secretary for Justice v Tse Sheung Kai [2001] 3
HKLRD 487. In HKSAR v Nguyen Anh Cuong [2012] 4 HKC 29, CA, per Macrae J, in-
dicated that a sentence of “at least” four years’ imprisonment was appropriate for the
members of what was described as a “systematic and highly organized gang of profes-
sional shop thieves”. (See also HKSAR v Cheng Sau Yuk [2012] 5 HKLRD 415; HKSAR
v Xiao Ping [2013] 2 HKLRD 378.) In the case of a recidivist, the starting point for
sentence should, duly enhanced, fully reflect the value of the stolen property and the
number of previous convictions: HKSAR v Yang Yan Yun [2014] 1 HKLRD 564.
If a trespasser commits theft in an industrial building, the starting point for burg-
lary in non-domestic (ie, commercial) premises is not applicable, as theft involves a
lower criminality: HKSAR v Wong Chi Wing [2015] 3 HKLRD 376.
653
Throwing Corrosive Fluid with Intent
5–605 This is a very serious offence, with a maximum penalty of life imprisonment, and
it is common for sentences of at least 8 years’ imprisonment to be imposed, rising to
18 years and beyond for the worst cases: see R v Chan Chi Lun [1989] 1 HKC 70; R v
Wong Oi Lin [1995] 1 HKC 659; HKSAR v Lung Hau Lin [2004] 2 HKLRD 715; HKSAR
v Cheung Cho Fat [2010] 5 HKC 400; HKSAR v Sin Wa Chiu [2012] 1 HKLRD 768;
HKSAR v Wong Yuk Kee [2013] 3 HKLRD 218; HKSAR v Kay Sik Hong, Billy [2014] 1
HKLRD 812. In HKSAR v Fok Ka Po, Joe (No 2) [2019] 2 HKLRD 1, it was emphasised
that the starting point of 18 years’ imprisonment was not a ceiling, given the max-
imum penalty of life imprisonment, and that, in any event, 18 years was not reserved
for attacks on strangers for financial reward.
Triad Society Offences

5–606 In R v Wai Hin Keung (CACC 133/1986), the Court of Appeal, per Cons VP, said
“triad offences of any kind are very serious offences”. The defendant who claims
membership of a triad society in order to threaten the victim of a triad-style bullying
must expect a substantial sentence of imprisonment: HKSAR v Tse Yiu Ming (CACC
75/2007). A sentence of 3 months’ imprisonment for claiming to be a member of a
triad society is at the bottom end of the sentencing bracket: HKSAR v Lau Chi Hung
(HCMA 783/2006). See also HKSAR v Choy Ka Fai [2011] 2 HKLRD 150. Professing
membership of a triad society involves a wide degree of culpability: HKSAR v Chan
Kin Kwok [2007] 4 HKC 517. Membership of a triad society might attract a sentence
of imprisonment in the range of 9 to 18 months: HKSAR v Lee Kar Wah (HCMA
1073/2007, [2008] 1 HKLRD B3). After trial, a sentence of 15 months’ impris-
onment for acting as a member of a triad society was imposed in HKSAR v Singh
Satinder Pal (CACC 428/2014, 7 May 2015).
A defendant who is or claims to be an office bearer of a triad society must expect
to face a substantial sentence of imprisonment: R v Wai Hin Keung [1987] 3 HKC 92;
Att-Gen v Cheung Yeung Kwan [1992] 2 HKCLR 169.
Unlawful assembly
5–607 The offence of unlawful assembly is punishable with 5 years’ imprisonment on in-
dictment, and 3 years’ imprisonment and a fine of $5,000 on summary conviction: s.18,
Public Order Ordinance (Cap 245). In Secretary for Justice v Wong Chi Fung [2018] 2
HKC 50 (CFA), the sentencing considerations were reviewed, together with the ag-
gravating factors, and new guidelines were approved by the Court of Final Appeal.
See also HKSAR v Wong Yuk Man [2015] 1 HKLRD 132 (which also involved the dis-
crete offence of unauthorized assembly), and HKSAR v Tai Chi-sing [2016] 2 HKC 436
(where violence and criminal damage were involved). In Secretary for Justice v Leung Hiu
Yeung [2018] 1 HKLRD 736, the impact of violence was assessed, together with civil
disobedience as a sentencing consideration.
Unlawful sexual intercourse with girl under 13

5–608 This offence is punishable with a maximum sentence of life imprisonment: section
123, Crimes Ordinance (Cap 200). In Secretary for Justice v Chung Yui Hung [2007] 2
HKLRD 771, it was said to be a particularly grave offence, which in reality came ex-
tremely close to the borderline with rape. See also HKSAR v Lau Chi Cheung [2008] 4
HKLRD 432, and Secretary for Justice v Chau Chi Yan [2009] 5 HKLRD 230, and HKSAR
v Lee Lo [2012] 1 HKLRD 1115.
Vice Establishment Offences

5–609 A starting point for sentence of 12 months’ imprisonment is warranted for as-
sisting in the management of a vice establishment, and fines and short suspended
sentences of imprisonment are no longer appropriate: HKSAR v Lam Sze Kai [2005]
7 HKLRD 273.
654
A manager of a vice establishment employing illegal immigrants and 2-way permit
holders as prostitutes may expect 8 months’ imprisonment after a guilty plea: HKSAR
v Au Kam Yui [2007] 3 HKC 281.
Unless the scale of operation of the vice establishment is particularly small or unless
there are special factors, this type of offence may attract a starting point of 12 months’
imprisonment: HKSAR v Man Man Kuen (HCMA 1049/2005, [2006] HKEC 143).
Wounding
The offence of unlawful wounding is punishable with a maximum sentence of 5–610
3 years’ imprisonment: s 19, Offences Against the Person Ordinance (Cap 212).
Although there is no tariff sentence, imprisonment is not uncommon. See HKSAR v
Liu Man Kuen [2000] 4 HKC 397; HKSAR v Cheung Tse Kin (HCMA 36/2004, [2004]
HKLRD (Yrbk) 392); Secretary for Justice v Yu Yat Sang [2011] 1 HKC 155.
Wounding with Intent

The offence of wounding with intent is punishable with a maximum sentence of life 5–611
imprisonment: s 17 of the Offences Against the Person Ordinance (Cap 212). There is
no tariff sentence, and no sentencing guideline, and each case turns on its own facts.
In Attorney General v Lam Yat Sing (CAAR 14/1992), the Court of Appeal, said “every-
thing will depend so heavily on the particular facts of each case”, per Fuad VP.
However, the range of sentences for offences of this type tends to fall between 3 and
12 years’ imprisonment: HKSAR v Tse Pok Lam [2005] HKLRD (Yrbk) 344. Sentences
above or below the range of 3 to 12 years may arise “if the circumstances are so un-
usual that they merit sentences above or below the usual bracket”: Secretary for Justice
v Hau Ping Chuen [2008] 3 HKC 398. This range does not constitute a tariff, and all
the circumstances must be considered: HKSAR v Wong Luk Sau [2013] 2 HKLRD 201.
There will always be cases which “require a starting point beyond this range”: HKSAR
v Chan Chun Tat [2013] 6 HKC 225, 235. In HKSAR v Yip Kim Wah [2019] HKCA 206,
19 years’ imprisonment was imposed after trial for the chopping of a journalist, which
caused severe injury and residual disability.
In HKSAR v Roja Sijian [2018] HKCA 986, it was said that the key factors in deter-
mining the appropriate level of sentence for wounding included the nature of the
assault, the use of a weapon and the circumstances of its use, the defenceless state of
the victim, and the effect of the injuries suffered by the victim.
All offences of wounding with intent are treated seriously, because they “all con-
tain the ingredient that the offender intended to inflict really serious injury at the
time”: HKSAR v Nguyen Van Phuong (CACC 341/2005, [2006] HKEC 470). Extremely
severe sentences with a heavy deterrent element may be warranted, as in the case of a
knife attack on a child (HKSAR v Tsang Ho Wai [2008] 4 HKC 1), or where a victim’s
ear was cut apart by a chopper (Secretary for Justice v Yu Yat Sang [2011] 1 HKC 155), or
where there is serious domestic violence: HKSAR v Chan Chun Tat (CACC 317/2012,
[2013] HKEC 494).
The most serious instances of wounding with intent will attract a sentence of life
imprisonment: HKSAR v Zen Fangyong [2006] 4 HKLRD 404.
655

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Chapter

I. PROCEDURE BETWEEN VERDICT OR PLEA AND SENTENCE

A. Determining the Facts for the Purposes of Sentence

C. Relevance of other Offences

Relevance of other offences apparently committed by the offender

Relevance of other offences included in the indictment in respect of

D. Sample Counts and Specimen Charges

Matters of aggravation which are constituent elements of other

E. Interpreting the Verdict of the Jury

F. Questioning the Verdict of the Jury

G. Strict Liability Offences

Pleas of guilty – when a Newton hearing is unnecessary

Pleas of guilty – evidence given in the trials of co-defendants

Defendant changing plea during trial

J. Information on Effect of the Offence on the Victim:

K. Taking Offences into Consideration

Efficacy of the procedure

Application of the procedure

Effect of taking offences into consideration

Matters which should not be taken into consideration

M. Function of Prosecution in Relation to Sentence

Prosecutor’s role under section 27 of the Serious Crimes Ordinance

P. Adjournments after Conviction and before Sentence

R. Obligation to Give Reasons

Duty to warn of unexpected sentence

Magistrates Ordinance (Cap 227), s 104

Notes on alteration of sentence

Grounds for alteration

U. Committal for Sentence

Magistrates Ordinance (Cap 227), s 81B

Juvenile Offenders Ordinance (Cap 226), s 3F

Grounds for refraining from exercise of power to remit

II. SENTENCES OF IMPRISONMENT

B. Maximum Sentences: Penalty Provisions

Penalties prescribed to be deemed maximum penalties

Criminal Procedure Ordinance (Cap 221), 101G

(b) Liability to imprisonment on conviction on indictment

Punishment of indictable offences

(c) General limit on magistrates’ court’s power to impose imprisonment

(d) Special Magistrates powers are more restricted

Indictable offences which may be dealt with by special magistrate summarily

(e) Conspiracy and attempt

(2) Notes on maximum sentence

Cases with substantial mitigation

Effect of change in maximum sentence

D. Time Served Prior to Imposition of Sentence

Computation of sentences of imprisonment

Administrative and judicial detention

(2) Notes on time served prior to sentence

Subsequent community service order

Concurrent/consecutive sentences arising out of different

Offences subsequently taken into consideration

Time spent in custody in relation to unconnected conviction

Extent of discount: Impact of Criminal Record

Withholding the discount

F. Consecutive Sentences of Imprisonment

Offenders serving existing sentences

Offences arising out of same transaction