Hong Kong Case Law: Decisions & Judgments

Topic

Double punishment

Legal area

Court

28 Oct 2020

HKSAR v. ISLAM SHAFIQUL

Citation

[2020] HKCA 871
Court

Court of Appeal
Case number

CACC210/2019

The judge erred in awarding only a 45% discount; the correct discount for the appellant's assistance was 50%. The judge was functus officio by the time of the 2 July 2019 re-sentencing and the slip rule could not be used to alter sentences, so the 2 July order was a nullity. On re-sentencing the Court adopted a starting point of 11 years 6 months (reflecting greater than courier role), enhanced by 12 months for aggravating factors to 12 years 6 months, then reduced by 50% to 6 years 3 months. The drug trafficking sentence was ordered to run 6 years consecutively and 3 months concurrently with…
21 Aug 2020

HKSAR v. CHAN WANG MEI

Citation

[2020] HKCA 703
Court

Court of Appeal
Case number

CACC307/2019

The judge was entitled to order part of the trafficking sentence to run consecutively to the manufacturing sentence because manufacturing and arranging distribution were distinct strands of criminality; there was no realistic basis to conclude the applicant was twice punished for the same conduct and the total sentence was not manifestly excessive, therefore leave to appeal was refused.
7 Aug 2020

HKSAR v. ALI NAZAKAT

Citation

[2020] HKCA 679
Court

Court of Appeal
Case number

CACC35/2019

The court held that the dishonesty offences were admissible because they formed part of the same incident and were relevant to present a truthful whole picture to the jury, but acknowledged that parts of the 3rd and 4th VRIs (spending spree and illegal entry details) might be more prejudicial than probative and therefore gave limited leave to appeal on those points; directions on drunkenness were adequate and the sentencing approach including enhancement for immigration status and consecutive term was not reasonably arguable as excessive.
19 May 2020

HKSAR v. ISLAM SHAFIQUL

Citation

[2020] HKCA 354
Court

Court of Appeal
Case number

CACC210/2019

Leave to appeal against sentence was granted because the judge erred in not applying a 50% discount for the applicant's assistance in testifying; the initial starting point and combined approach adopted by the judge were appropriate and not disturbed; the judge's attempt to alter or make orders affecting a sentence imposed by another court raised a reasonably arguable jurisdictional error under the slip rule and functus officio principles; appellant granted appeal aid certificate to pursue appeal on sentence.
17 Jun 2005

HKSAR v. KWAN WAI HON

Citation

HKSAR v. KWAN WAI HON
Court

Court of Appeal
Case number

CACC91/2005

The judge's non‑standard phrasing had an adverse and arguable effect on the applicant's release date because, given statutory credit under s67A(1A), treating the District Court sentence as commencing exactly six months after the Fanling sentences' start produced a later release date than would a conventional order that six months run consecutively; consequently leave to appeal against sentence was properly granted to enable correction.
28 Jan 2004

HKSAR v. WONG HING LAM

Citation

HKSAR v. WONG HING LAM
Court

Court of First Instance
Case number

HCMA69/2004

The Court held the Magistrate did not err in principle or impose an excessive sentence: the operation was substantial and sophisticated, the appellant's relevant prior convictions warranted a starting point of six months reduced to four months because a fine was to be imposed and further reduced to three months for the guilty plea; the combination of imprisonment and fine was not a prohibited double punishment, and the appeal was dismissed.
7 Aug 2002

HKSAR v. WONG LIN PAN

Citation

HKSAR v. WONG LIN PAN
Court

Court of Appeal
Case number

CACC528/2001

Leave out of time was granted and the sentence was reduced by one year because the applicant was indistinguishable from co-defendants whose sentences were reduced and the trial judge had effectively punished the applicant twice for the element of unlawful entry by imposing a consecutive immigration sentence; reduction was necessary to remedy double punishment while leaving the magistrates' sentence intact.
17 Apr 2002

HKSAR v. SHEK TSZ-YUK AND ANOTHER

Citation

HKSAR v. SHEK TSZ-YUK AND ANOTHER
Court

Court of Appeal
Case number

CACC528/2001

Where a defendant has received or will receive a separate, lawful sentence for unlawful entry, a sentencing court should not double-count that immigration status as an aggravating feature to enhance the robbery sentence; in the facts before the Court the proper starting point for the robberies was seven years (subject to plea discounts), and the Court reduced the robbery sentences accordingly because the Court of First Instance had not been informed of the magistrates' consecutive sentences for unlawful entry.
17 Apr 2002

HKSAR v. MA HON WU CHI-MAN

Citation

HKSAR v. MA HON WU CHI-MAN
Court

Court of Appeal
Case number

CACC491/2001

Where defendants were separately and properly sentenced to consecutive custodial terms of 15 months in the magistrates court for unlawful entry, the Court of Appeal held it was inappropriate to further enhance the robbery starting point on account of the same unlawful entry status because that amounted to double punishment; applying Mo Kwong-sang the appropriate starting point for the robbery facts was seven years and, after plea discounts, the robbery sentences were reduced accordingly.
23 Aug 1995

R. v. CHAN LUN FAI

Citation

R. v. CHAN LUN FAI
Court

Court of First Instance
Case number

HCMA598/1995

By‑law 6(c) applies to boarding without having first obtained a ticket and is distinct from By‑law 10 which deals with expired tickets and surcharges; the prosecution failed to prove beyond reasonable doubt that the ticket had expired because reliance on officers' watches without verification against the point‑of‑issue clock was insufficient, therefore the conviction under By‑law 6(c) could not stand.