Hong Kong Case Law: Decisions & Judgments

Topic

Mandatory minimum sentence

Legal area

Court

22 Aug 2023

HKSAR v. LUI SAI YU (呂世瑜)

Citation

[2023] HKCFA 26
Court

Court of Final Appeal
Case number

FACC7/2023

NSL21(2) prescribes a mandatory minimum sentence of not less than five years for offences of a serious nature; reductions below that statutory five-year floor are only permissible where NSL33(1) applies, and the three conditions in NSL33(1) are exhaustive for obtaining such reductions. Accordingly the sentencing court must determine seriousness, select a starting-point within the appropriate NSL band, and may only reduce a provisional sentence below the statutory minimum if one of the NSL33(1) conditions is satisfied.
16 May 2023

HKSAR v. LUI SAI YU (呂世瑜)

Citation

[2023] HKCFA 10
Court

Court of Final Appeal
Case number

FAMC7/2023

The Court granted leave to appeal on the two certified questions to determine (1) whether the statutory minimum in NSL s.21 is mandatory for serious offences and (2) whether NSL s.33(1)'s three conditions are exhaustive; the Court refused leave on the additional contention as it did not raise an independent question of law.
27 Apr 2023

HKSAR v. LUI SAI YU

Citation

[2023] HKCA 611
Court

Court of Appeal
Case number

CACC61/2022

The Court accepted the short delay as excusable, held that the questions concerning the proper construction of NSL article 21 (whether the five‑year threshold is mandatory) and NSL article 33(1) (whether its three conditions are exhaustive or whether other mitigating factors may reduce a sentence below five years) are points of law of great and general importance, and granted a certificate under section 32(2) on those formulated questions for the Court of Final Appeal to determine.
30 Nov 2022

HKSAR v. LUI SAI YU

Citation

[2022] HKCA 1780
Court

Court of Appeal
Case number

CACC61/2022

On proper construction NSL 21's upper tier for serious offences establishes a mandatory minimum custodial term of five years which cannot be reduced by ordinary mitigating factors such as a guilty plea; NSL 33(1) is exhaustive and only the three specified conditions can permit reduction or alternative disposals below the prescribed minimum; the Judge's factual categorisation of the offence as serious was correct and the five year sentence was properly imposed.
14 Nov 1980

YIU CHUNG-FU v. THE QUEEN

Citation

YIU CHUNG-FU v. THE QUEEN
Court

Court of Appeal
Case number

CACC883/1980

The mandatory one‑month imprisonment under s.25 was properly imposed because the magistrate did not accept that special circumstances existed; however, on appeal the court exercised its discretionary power to suspend that custodial sentence in light of the appellant's personal circumstances (youth, otherwise clear record apart from motoring offences, and his pregnant wife), while increasing the period of disqualification due to his bad motoring record.
29 Jun 1979

SIU WING-SHING v. THE QUEEN

Citation

SIU WING-SHING v. THE QUEEN
Court

Court of Appeal
Case number

CACC516/1979

Section 25 allows only a fine (if special circumstances) or imprisonment (minimum one month) and does not authorize a Detention Centre Order; however section 109A applies to offenders aged over 16 and under 21 so the court must consider alternatives and may suspend sentences where appropriate; accordingly the detention centre order was unlawful and the appropriate sentence was three months imprisonment suspended for two years on the first charge.
30 May 1978

CHAN KAM-CHAU v. THE QUEEN

Citation

CHAN KAM-CHAU v. THE QUEEN
Court

Court of Appeal
Case number

CACC466/1978

Section 33(2) of the Public Order Ordinance provides exhaustive sentencing powers for the offence; a detention centre order was not an authorized sentence and therefore unlawful. The lawful substitute sentence is the statutory mandatory minimum of six months' imprisonment (running from the date of the original order), with a one month sentence for the other offence to run concurrently, producing an effective total of six months' imprisonment.
13 Dec 1975

TSANG MAI-HING v. THE QUEEN

Citation

TSANG MAI-HING v. THE QUEEN
Court

Court of Appeal
Case number

CACC1027/1975

TSANG MAI-HING v. THE QUEEN
13 Dec 1975

TANG SHUN-NIN v. THE QUEEN

Citation

TANG SHUN-NIN v. THE QUEEN
Court

Court of Appeal
Case number

CACC988/1975

The 12-month sentence was excessive in the circumstances and reduced to the mandatory six months under section 33 because the knife was wrapped, there was no evidence of use or attempt to use it, and these mitigating factors warranted no more than the mandatory minimum.
26 Oct 1973

AU WING-WAI AND OTHERS v. THE QUEEN

Citation

AU WING-WAI AND OTHERS v. THE QUEEN
Court

Court of Appeal
Case number

CACC724/1973

The convictions were upheld because the magistrate had ample independent eyewitness police evidence making the convictions safe despite disputed statements, and the sentencing relief sought (binding over) could not be granted because the statutory scheme under s.33 of the Public Order Ordinance and related provisions precluded avoidance of mandatory sentencing by recourse to common law or ancient statute powers; accordingly the sentences were lawful and upheld.