HKSAR v. Lo Kam Fai

CACC 374/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2014

(ON APPEAL FROM DCCC NO. 956 OF 2010)

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J U D G M E N T

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Hon Yeung VP:

1.A defendant who enters a timely plea of guilty is normally entitled to a sentence discount of one-third from the starting point because it is in the public interest to do so. As Kirby J in R v Cameron [2002] 187 ALR 65 put it at p 82 of the judgment:

“ The main features of the public interest, relevant to the discount for a plea of guilty, are ‘purely utilitarian’. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds.

Given that under our criminal justice system it is the right of the accused to put the state to the proof of the crime charged; given that by pleading guilty the accused surrenders any chance of being acquitted, even undeservedly; and given some empirical evidence that sentences following contested trials are not always substantially different from sentences upon a plea, it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt.  Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held.  It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws.  A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered.  Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence.”

2.The appellant absconded and failed to attend his trial fixed to begin in February 2011, 17 months after he committed the offence of burglary in September 2009.  The appellant was re-arrested almost 40 months later in June 2014. When the appellant appeared in court on 30 June and 29 July 2014, he indicated that he would plead not guilty to the charge of burglary, but guilty to the charge of failing to surrender to custody without reasonable cause.  A two-day trial was fixed to commence on 14 October 2014 and the prosecution intended to call six witnesses (four police officers and two civilians).  The appellant only indicated through his counsel on 10 October 2014 that he would plead guilty to both charges and he formally entered those guilty pleas on 14 October 2014.

3.What the appellant did offended the very reasons for which the one-third sentence discount is given for a guilty plea.  The appellant had hindered the course of justice and had made it more difficult and more costly for its administration. He had wasted precious judicial resources and had caused inconvenience to the police and the victims who had the matter hanging over their heads for over 5 years.  The judge, in my view, was entitled to give the appellant a discount which was less than one-third on his guilty plea to the burglary charge.

4.It was suggested that when the appellant was given a sentence discount of less than one-third from the starting point when he pleaded guilty to the charge of burglary and at the same time was sentenced to an additional 4-month imprisonment on the charge of failing to surrender to custody without reasonable cause, he was punished twice for the same facts.  This is perhaps true, but there is a logical foundation for such an approach.  As this court had observed in HKSAR v Ko Chun Hung (CACC 71/2007; unreported, 21 November 2007):

“ By absconding, the applicant had committed a fresh offence and had to be punished separately. By absconding, the applicant also rendered the administration of justice more costly and more time-consuming, and the judge was entitled to exercise his discretion by reducing the percentage of discount that he would otherwise obtained.”

5.What constitutes a timely plea is debatable as this court had observed in HKSAR v Ma Ming [2013] 1 HKLRD 813 at p 820:

“ Difficulties and disputes may arise in carrying out this policy of giving a one-third discount and in deciding what a timely plea of guilty is. Since there is a period of time between the moment when a suspect is put under arrest and the time when he appears in court to face the charge or charges, what happened during that period of time and the attitude taken by the suspect might influence the sentencing decision…is a defendant who admits his guilt forthwith at the outset and cooperates with the prosecution entitled to a larger discount on his sentence when compared with a defendant who makes up his mind to plead guilty only when the trial begins?”

6.In order to avoid uncertainty, delay and unnecessary expense arising out of arguments over niceties and subtleties, the court, as a matter of policy, would normally give a defendant a sentence discount of one-third from the starting point as long as he pleads guilty before the trial starts.  Such a policy can be abused.

7.Defendants who plead guilty at a very late stage when they should plead guilty at much earlier stages still get the full one-third discount and very often defendants deliberately wait until the last moment before pleading guilty, resulting in a wastage of huge public resources.  The policy that a defendant will get the full one-third discount as long as he pleads guilty at any time before the trial starts may have to be adjusted to deal with such an abuse, but it is not a matter that should affect the outcome of this appeal.

8.When a defendant absconds, he can expect to be given a sentence discount of less than one-third when he pleads guilty and that he would be additionally punished for the fresh offence of “absconding”.  

9.In my view, it was not wrong in principle for the judge to afford the appellant only an 8-month discount from the 3-year starting point (about 22%) when he pleaded guilty to burglary after having absconded for almost 40 months and impose on him an additional 4-month sentence on the charge of failing to surrender to custody without reasonable cause.  On the facts of the case, the total sentence of 32 months’ imprisonment, in my view, is not manifestly excessive either.

10.I would dismiss the appeal against sentence.

Hon Lunn VP:  

11.With the leave of Macrae JA, granted on 29 October 2015, the appellant appeals against the sentences of 28 months’ and 4 months’ imprisonment, ordered to be served consecutively, imposed on him on 29 October 2014 by Deputy District Court Judge Terence Wai in the District Court following his conviction on his pleas of guilty on 14   October 2014 to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charge 1) and a charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (Charge 2).

12.On 18 December 2015, Lunn VP and Macrae JA refused the appellant’s application out of time for leave to renew his application for leave to appeal against sentence on the basis of ground 1, by which it was argued that, having regard to all the circumstances, in particular the limited use and occupation of the premises by the owners and their agents, the judge erred in stipulating a starting point for sentence of 3 years’ imprisonment.  The Court adjourned the hearing of the appeal to the Court as constituted today.

The facts

13.In 2001, the owner of the premises, described surprisingly as a ‘Stone Hut’, situated at No. 2, Shing Mun Sheung Village, Shing Mun Road, Tsuen Wan, emigrated to New Zealand, and left the premises to be taken care of by Mr Lau and Ms Lee.  On occasions, they went to the premises, where they had barbecues with their family.

14.On 12 September 2009, Mr Lau and Ms Lee found that the padlock and lock of the iron gate to the premises had been changed.  On the following day, they returned to the premises with a locksmith and a police officer.  The locksmith having opened the locks, they discovered that the wooden door of the hut had been prized open.  While there were no signs of ransacking inside the premises, it was evident that someone had been using the bed, pillow and quilt.  The locks were then changed.

15.Five days later, on 17 September 2009, Mr Lau and Ms Lee returned to the hut and discovered that the locks of the iron gate had been damaged.  On their instructions, a locksmith repaired the locks.

16.On 20 September 2009, the appellant was intercepted by police officers after he had emerged from the premises.  On entering the premises they found that the lights and air conditioning were operating and a woman was sitting on the sofa.  A hammer, a screwdriver, a pair of pliers, an electric drill, and two damaged door locks were found on a table near the doorway of the premises.

17.Having been arrested and cautioned the appellant claimed that he had rented the hut from a Mrs Lee, but he was unable to provide any written proof of either the tenancy or Mrs Lee’s contact details.  Mr Lau and Ms Lee confirmed that they did not know the appellant.  Mr Lau said that three bottles of wine valued at a total of HK$500 were missing from the premises.

Background to the pleas of guilty

18.Having been charged with burglary, the appellant’s trial was fixed to begin in the District Court on 17 February 2011.  However, the appellant absconded and failed to attend his trial.  He was re-arrested on 27 June 2014.  On 3 July 2014, under caution, the appellant claimed that he had forgotten to attend court for his trial, as he was busy at work.  On 30 June 2014, the appellant appeared before District Court Judge Stanley Chan and was remanded in custody until 29 July 2014.  On that date, the appellant, who was represented by a member of the Legal Aid department, intimated to the court that he would plead not guilty to the charge of burglary but guilty to the charge of surrender to custody without reasonable excuse.  District Court Judge Kwok set down the matter for trial to commence on 14 October 2014, with two days reserved.  The judge noted that the prosecution intended to call four police officers and two other witnesses.  On 14 October 2014, the appellant pleaded guilty to the two charges.

Reasons for sentence

19.The judge noted that the appellant was 38 years of age and that he had no fewer than 39 criminal convictions, imposed on 13 occasions over a period of 15 years from 1990 to 2005.  In fact, the appellant had 29 convictions.  Further, he noted that nine of the previous convictions were for offences of dishonesty.  In 2005, the appellant had been sentenced to 6½ years’ imprisonment for an offence of robbery.  The appellant had a bad driving record and had been disqualified from driving twice.

Starting point for sentence

Charge 1

20.Having noted in his reasons for sentence that the premises, “..had a living room, a kitchen, and two rooms, one of which is clearly a bedroom” and that the premises were, “partitioned, decorated, furnished and fitted out as a dwelling” the judge determined:

“ …the hut should be regarded as domestic premises, and the usual starting point of 3 years imprisonment for burglary of domestic premises should be applied.. .”

Charge 2

21.In respect of Charge 2, the judge noted that the appellant had failed to surrender to custody, namely by attending court on 17 February 2011, and that he had remained at large until he was re-arrested on 27 June 2014.  The judge stipulated a starting point for sentence of 6 months’ imprisonment.

Discount of sentence

22.The judge said that, apart from the appellant’s plea of guilty, there were no other mitigating factors.  In the context of the submission advanced in mitigation, that the appellant “understood I had done something wrong” in committing the burglary and in absconding, the judge said:

“ the defendant had made no attempts to surrender himself to the police or to court.

His failure to come forward voluntarily indicates a reluctance on his part to accept responsibility for what he had done and to facilitate the course of justice: see HKSAR v Ko Chun Hung CACC 71/2007.”

23.In determining that it was not appropriate to afford the appellant a one-third discount for his guilty plea to the burglary charge, the judge said:

“ By his absconding, the defendant rendered the administration of justice more costly and time-consuming. Moreover, his present plea to the burglary charge is anything but a timely plea: see HKSAR v Lam Kin-chung CACC 27/2007.”

24.In the result, the judge stated that for Charge 1, he afforded the appellant a discount of 8 months’ imprisonment from the starting point of 3 years’ imprisonment, noting that was a discount of about 22% from the starting point.

25.By contrast, the judge stated that he afforded the appellant a discount of one-third from that taken as the starting point for sentence in Charge 2.

26.In the result, the judge sentenced the appellant to 28 months’ imprisonment on Charge 1 and 4 months’ imprisonment on Charge 2.  Stating that the charges were “distinct and separate offences”, the judge ordered that the sentence of 4 months’ imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of 28 months’ imprisonment imposed in respect of Charge 1.  Accordingly, the total sentence imposed on the appellant was 32 months’ imprisonment.  Finally, he ordered the appellant to pay $2,000 to Mr Lau Chi Sing as compensation for the loss and damage he had suffered in the burglary.

Grounds of appeal against sentence

27.In the amendedgrounds of appeal against sentence, Mr Beel submitted that, in imposing a total sentence of 32 months’ imprisonment on the appellant, the judge had wrongly ‘double counted’ the fact that the appellant had absconded.  As a result, he submitted that two months of the sentence of imprisonment imposed in respect of Charge 2 ought to have been ordered to be served concurrently with the sentence of 28 months’ imprisonment imposed in respect of Charge 1, so that the appropriate total sentence to be imposed on the appellant was 30 months’ imprisonment.  Further, he contended that the judge erred in determining, from the fact that the appellant had absconded, notwithstanding the fact that he had pleaded guilty, that the appellant had shown no remorse, and in having regard to that in determining the discount to be afforded to the appellant.

The respondent’s submissions

28.For the respondent, Mr  David Chan and Ms  Rosa Lo opposed the appeal against sentence.  It was submitted that, given that the appellant had absconded and had not been re-arrested for over three years, he was not entitled to a one-third discount for his plea of guilty.  That discount was afforded for a timely plea of guilty.  He submitted that the judgments of this court suggested that the appropriate range of reduced discount in those circumstances was 20-25% from that taken as the starting point for sentence of the substantive offence[1].  The appellant’s plea of guilty was anything but timely.  It had been necessary to schedule two sets of court appearances, the first of which in 2011 was rendered useless by the absence of the appellant.  The attendance on the date fixed for trial, namely 17 February 2011, of counsel for the prosecution and the defence, prosecution witnesses, the judge and his supporting staff was rendered useless.  Further, even after his re-arrest the appellant’s conduct necessitated three further hearings: first, a Mention date on 30 June 2014; secondly, a ‘Plea Day’ on 29 July 2014 at which the appellant, who was represented by a member of the Legal Aid Department, indicated he would plead not guilty to the charge of burglary, but guilty to the charge of failing to surrender to custody without reasonable cause; thirdly, the date set for his trial, namely 14 October 2014, at which he pleaded guilty to both charges.  In fact, a fourth hearing, on 29 October 2014 was necessitated by the challenge taken on behalf of the appellant that the premises were not to be regarded as domestic premises for purposes of sentence.

29.Mr Chan submitted that the judge was correct to determine that the two offences were separate and distinct and that he did not err in ordering that the sentence of imprisonment imposed in respect of Charge  2 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  In support of that submission, the Court was invited to have regard to a number of its earlier judgments.[2]

30.It was submitted that there was no element of ‘double counting’ in affording the appellant only a reduced discount for his untimely plea of guilty and ordering that the sentence imposed in respect of Charge 2 be served consecutively to that imposed in respect of Charge 1.  The offence the subject of Charge  2 was a separate and distinct offence, reflected appropriately in a separate sentence.

A consideration of the submissions

The range of discount to be afforded to a defendant for a plea of guilty

31.It has been long established in this jurisdiction that the full discount of one-third from that taken as a starting point for sentence for a plea of guilty is afforded only in circumstances where that plea is timely.  The appropriate reduced discount to be afforded to a defendant where a plea of guilty is not timely will reflect the individual circumstances of the particular case.  A range of factors may be relevant: the length of time that justice has been delayed; whether or not the defendant surrendered to the authorities ultimately or whether it was necessary for him to be re-arrested; the inconvenience and wasted expense and costs caused by the aborted scheduled hearing, to witnesses, counsel and the court.  That is particularly the case, if witnesses have travelled to Hong Kong from overseas or remained in Hong Kong, where otherwise they would not have done so, in order to give evidence.  There may be many other relevant factors.

32.Mr Beel was correct to concede that the usual range of discount afforded to a defendant who has absconded is about 20% to 25%.  Of course, there are circumstances peculiar to a particular case which will justify discounts outside that range.  Within the usual range, the judge has a discretion in determining the discount appropriate to the circumstances of any particular case.

33.In HKSAR v Kwok Shiu To [3], in allowing an appeal against sentence to the extent that the total of 30 months’ imprisonment imposed on the appellant by the judge was reduced to a total of 20 months’ imprisonment, this Court said that a discount of only 20% was appropriate to reflect the appellant’s late pleas of guilty to nine offences of theft from his employer.[4]  Having absconded whilst on police bail in February 2001, the appellant was not re-arrested until August 2005.

34.In HKSAR v Kwan Po Keung [5], in allowing an appeal against sentence, this Court said that the judge ought not to have afforded the appellant the full one-third discount from the starting points taken for sentence, given that his pleas of guilty were not timely.  Having been charged with various offences of dishonesty, the appellant was released on bail by the court on 6 March 1998.  However, he failed to attend court, as required, on 27 March 1998.  It was only on 25 October 2010 that the appellant surrendered to the police.  The lower court sentenced the appellant on the charges of dishonesty only.  A charge of failing to surrender to custody without reasonable excuse was ordered to lie on the court file.  In the circumstances of the case, this Court said that a discount of only 25% from that taken as a starting point was appropriate.[6]

Double counting

35.The issue of the appropriate approach to sentencing in circumstances where the defendant has absconded whilst on bail and where on his re-arrest he is liable to or has been charged with an offence of absconding whilst on bail has been considered in various judgments of this Court.

36.In HKSAR v Poon Chum Kong [7], this Court considered the approach of the trial judge in affording the defendant a discount of 25% only, rather than a full one-third discount, in circumstances where he had tendered his plea of guilty to trafficking unlawfully in 246 grammes of heroin on 1 April 1999, having absconded whilst on bail in 1993.  Keith JA said:[8]

“ One of us was initially concerned about that approach. A person admitted to bail who fails to surrender to custody when called upon to do so commits an offence punishable with imprisonment: see section 9L of the Criminal Procedure Ordinance (Cap. 221). To deny a defendant who absconded the discount for his plea of guilty which he would otherwise have been given could be said to be tantamount to punishing him for committing that offence. He is, in effect, serving an additional sentence for having absconded when he had not been charged with that. It could be said that it was wrong to treat the defendant in a way which has the effect of him receiving an additional sentence of imprisonment for an offence for which he had never been charged.

However, any initial misgivings about that approach have now been laid to rest.  The reason why the discount is reduced in these circumstances is because the plea of guilty is not tendered at the earliest opportunity.  Indeed, the effect of the Appellant absconding was that there had to be a second trial.  He was not therefore being punished for absconding.  He was being denied the discount to which he would otherwise have been entitled because of the consequences of his absconding, namely that his plea of guilty was in the circumstances a late plea and that a second trial was necessary.  If one of the justifications for giving a discount for a plea of guilty is the saving of the expense of a contested trial, that was to some extent neutralised in the present case by the expense of an albeit short second trial.” [Italics added.]

37.In HKSAR v Ko Chun Hung [9], this Court dismissed an application for leave to appeal against a total sentence of 34 months’ imprisonment imposed on the appellant following his pleas of guilty to two charges of theft (pickpocketing) and to one charge of failing to surrender to custody without reasonable cause.  Having taken a starting point of 24 months’ imprisonment for the theft offences and 6 months’ imprisonment for the third offence, the judge afforded the appellant a discount of only four months in respect of the theft offences but one of one-third for the third offence, namely of failing to surrender to custody without reasonable cause.  The judge afforded the appellant a reduced discount for the theft offences because he had not attended his trial on 18 January 2005, as required by his conditions of bail, and because, even after he had been re-arrested, he required the matter to be set down for trial, which had resulted in a trial being fixed for three days.  He was re-arrested only on his return from Macau on 6 January 2007.

38.Having stipulated a starting point for sentence of 6 months’ imprisonment for the offence of failing to surrender to custody, the judge afforded the appellant a full one-third discount of 2   months’ imprisonment.  In the result, he sentenced the appellant to 20 months’ imprisonment on each of the theft charges, 10 months’ of the latter of which sentences he ordered to be served consecutively to the sentence imposed on the first charge.  Finally, he ordered that the sentence of 4 months’ imprisonment imposed on the third charge be served consecutively to the sentences imposed on the other two charges.

39.Issue was taken on behalf of the appellant with the 16.66% discount afforded to the appellant for his plea of guilty in respect of the theft charges as being inadequate.  Further, it was contended that the ultimate sentence of 34 months’ imprisonment was manifestly excessive.

40.In the judgment of the Court, approving the judge’s approach to sentence, Yeung JA (as Yeung VP was then) said:[10]

“ We accepted that having been sentenced to 4 months’ imprisonment for absconding and then not being granted the full one-third discount for pleading guilty again because of absconding, the applicant appeared to have been punished twice for the same facts. However there was a logical foundation for it.

By absconding, the appellant had committed a fresh offence and had to be punished separately. By absconding, the appellant also rendered the administration of justice more costly and more time-consuming, and the judge was entitled to exercise his discretion by reducing the percentage of discount that he would otherwise obtained.

The discount of less than 20% to reflect his guilty pleas was not a generous discount.  However there was a valid reason for it and we were not persuaded that such discount justified our interference.”

41.In HKSAR v Leung Yau Wing, Victor [11]this Court refused an application for leave to appeal against a total sentence of 3 years and one month’s imprisonment imposed on the appellant, following his pleas of guilty to a charge of soliciting an advantage as an agent and to a charge of failing to surrender to custody.  The appellant was sentenced to 3 years’ imprisonment for the former charge and one month’s imprisonment for the latter charge, which sentence was ordered to be served consecutively to the sentence of imprisonment imposed on the first charge.  The appellant had been granted bail on the first charge on condition that he attended his trial on 12 August 2013.  He failed to do so.  He was re-arrested on 21 October 2013 on his return to Hong Kong, after he had informed the authorities of his intended return.  No issue was taken before this Court in respect of the sentence of one month’s imprisonment imposed for the second charge or to the order that they be served consecutively to the sentence imposed on the theft charge.

42.In HKSAR v Yeung Kin Chai [12]this Court granted an application for leave to appeal a total sentence of 2 years and 10 months’ imprisonment imposed on the appellant following his pleas of guilty to a charge of dealing with property known or believed to represent the proceeds of an indictable offence and a charge of failing to surrender to custody without reasonable cause.  The appellant was sentenced to 2 years and 4 months’ imprisonment on the first charge and 6 months’ imprisonment on the second charge, which sentence was ordered to be served consecutively with the sentence imposed on the first charge.

43.The appellant absconded at the end of the first day of his trial on 29 October 1997.  The appellant did not surrender to the authorities in Hong Kong voluntarily.  Rather, he was re-arrested in May 2008, after he was transferred as a serving prisoner from Macau to Hong Kong to complete his prison sentence in Hong Kong.

44.Although this Court determined that the starting point of 3 years’ imprisonment taken by the judge for the first charge was too high and substituted a starting point of 30 months’ imprisonment, having regard to the fact that the claim was not timely, this Court approved the reduced discount of 20% that the judge had afforded the appellant for his plea of guilty for the first charge.  In the result, this Court substituted a sentence of 2 years’ imprisonment for the first charge.  It did not interfere with the sentence of 6 months’ imprisonment imposed on the second charge or the order that it be served consecutively to the sentence of imprisonment imposed on the first charge.

Conclusion

45.I am satisfied that, in the circumstances of this case, the judge was entitled to afford the appellant a reduced discount of 22% only from that taken as the starting point.  It fell squarely within the usual range of reduced discount afforded to a defendant who pleaded guilty, having failed to surrender to custody without reasonable excuse, and within the judge’s discretion in such circumstances.  The appellant had caused the courts to fix dates for his trial on two separate occasions, separated by more than three and a half years, had absconded on the first occasion and tendered his plea of guilty to Charge 1 only on the first day of trial, albeit that the court had been informed by a letter from the appellant’s solicitors dated 10 October 2014 that the appellant, “…has confirmed instructions to plead guilty to both Charges 1 and 2 against him and also he would admit the Amended Summary of Facts.”  Mr Chan confirmed that, having been given similar advance notice of the appellant’s intentions, no prosecution witnesses had been required to attend the hearing on 14 October 2014.

46.No issue was taken with the sentence of 4 months’ imprisonment that the judge imposed in respect of Charge 2.  I am satisfied that that sentence was appropriate.

47.The remaining issue is whether or not the judge’s order that the whole of the sentence of 4  months’ imprisonment be served consecutively to the sentence of 28 months’ imprisonment in respect of Charge 1 is appropriate.  There is no issue but that the offence the subject of Charge 2 was a wholly distinct and separate offence from that of burglary.  In principle, sentence imposed for the former offence ought to be ordered to be served consecutively.  In many ways, it is the classic case demanding that such sentence be ordered to be served consecutively.  No case has been drawn to our attention where this Court has interfered with such an order and ordered that it be served partly concurrently.

48.At the request of the Court, in his most helpful supplementary written submissions, Mr Beel addressed the sentencing practice in England and Wales in respect of the sentencing of a defendant for two offences, namely the substantive offence and, having been granted bail, the offence of failing to surrender to custody[13].  In their helpful supplementary written submissions, Mr  Chan and Ms  Lo addressed the sentencing practice not only in that country, but also in Australia and Canada.

England and Wales

49.The offence of failing to surrender to custody without reasonable cause created by section 9L of the Criminal Procedure Ordinance reflects a similar offence provided for by section 6(1) and (2)  of the Bail Act, 1976.  The Consolidated Criminal Practice Direction, issued by Lord Woolf CJ on 22 January 2004 describes the nature of the offence and the consequences of the commission of the offence on the administration of justice:[14]

“ The failure of the defendants to comply with the terms of their bail by not surrendering can undermine the administration of justice. It can disrupt proceedings. The resulting delays impact on victims, witnesses and other court users and also waste costs. A defendant’s failure to surrender affects not only the case with which he is concerned, but also the court’s ability to administer justice more generally by damaging the confidence of victims, witnesses and the public in the effectiveness of the court system and the judiciary.”

50.In R v Andrew Ross White, Neil McKinnon [15] the Court of Appeal of England and Wales addressed the question of whether or not the sentence to be imposed in respect of an offence of failing to surrender to custody ought to be served consecutively to the sentence imposed in respect of the substantive offence.  In the judgment of the Court, Kennedy LJ said:[16]

“ …we are in no doubt that in principle a sentence for failing to surrender should always be ordered to be served consecutively to any other sentence imposed the same time for another offence.”

51.His Lordship went on to state that the remarks of Phillips J, as he was then, in R v Gorman [17] “…must be regarded as confined to that peculiar circumstances of the case where the sentences imposed for a failure to surrender were very short.”  In that case, Phillips J had said, “…where a court is imposing a total sentence of as long as 12 months it will seldom be appropriate or desirable to add to that sentence very short consecutivesentences for offences such as failing to surrender to bail.”  Nevertheless, his Kennedy LJ said [18]:

“ However, in any individual case, and of course if a very long sentence is imposed for a substantial offence calculated in terms of years, the court may consider that in the particular circumstances a sentence for failing to surrender to custody should be ordered to be served concurrently. That in the end must be a matter for the individual trial judge.”

52.In that case, the court dismissed an appeal by White, who had been convicted after trial, that the judge had erred in ordering that a sentence of 6 months’ imprisonment, imposed for the offence of failing to surrender to custody, was to be served consecutively to a sentence of 6 years’ imprisonment for an offence of conspiracy to supply class A drugs.  White had been at large for over two years.  Similarly, the court dismissed an appeal by McKinnon that the judge had erred in ordering that a sentence of 3 months’ imprisonment, imposed for the offence of failing to surrender to custody, was to be served consecutively to a sentence of 5½ months’ imprisonment for the offence of taking a motor vehicle without the consent of the owner.  McKinnon had been at large for less than two months.

53.The subsequent Practice Directions [19] issued by the Lord Chief Justice, and the Sentencing Guidelines Council’s guideline ‘Fail to Surrender to Bail’, reflect the statement of Kennedy LJ that in principle the sentence for the offence of failing to surrender to custody should be served consecutively to any other sentence imposed at the same time for another offence.  The guidelines state:[20]

“ Where a custodial sentence is appropriate for the original offence and a custodial sentence is also deemed appropriate for a Bail Act offence, a court should normally impose a consecutive sentence. However, a concurrent sentence will be appropriate where otherwise the overall sentence would be disproportionate to the combined seriousness of the offences.”

54.In R v Barnes [21] the Court of Appeal of England and Wales dismissed an appeal against a total sentence of 8 years and 5 months’ imprisonment imposed on the appellant after her pleas of guilty to an offence of causing death by dangerous driving and an offence of failing to surrender to custody without reasonable excuse.  Having been committed on bail for trial in the Crown Court, the appellant failed to attend a Plea and Case management hearing.  Eventually, 18 months later, she was rearrested in the Netherlands.

55.Having identified a starting point for sentence of 10 years’ imprisonment for the offence of causing death by dangerous driving, the judge afforded the appellant a discount of 20% from the starting point.  In doing so, he said that the discount was to be reduced, inter alia, by reason of the absconding.  In sentencing the appellant to 5 months’ imprisonment for the offence of failing to surrender to custody without reasonable excuse, the judge wrongly stated that the maximum sentence was 6 months’ imprisonment.  In fact, it was 12 months’ imprisonment.  He said that the circumstances of the commission of the offence, “place it at or above the maximum sentence”.  Further, he noted that, in stipulating the appropriate starting point for the offence of causing death by dangerous driving, he had already taken into account the distress caused to the deceased’s family by the delay caused to the proceedings by the appellant’s absconding.

56.In the judgment of the court, Davis LJ noted that it was submitted on behalf of the appellant that “there was an element of double counting” in the imposition of the sentence of 5 months’ imprisonment, given that the judge had regard to that factor as a factor of aggravation in the commission of the offence of causing death by dangerous driving.  Also, it was submitted that ordering the sentence of 5  months’ imprisonment to be served consecutively to the other sentence “offended the principle of totality”.  In rejecting the submissions, Davis LJ said:[22]

“ Mr Hiddleston today in oral argument has focused more on the consecutive term of five months imprisonment imposed for the offence of sailing to surrender. He accepts that there can be no error in principle in ordering such a sentence for such offending to run consecutively. Indeed, that would be the norm. The complaint, however, that there was an element of the double counting.

That cannot be sustained.  The judge set out in terms that he was aware of the risk of double counting and had avoided it.”

57.Further, the judge rejected the submission that the total sentence of 8 years and 5 months’ imprisonment offended the principle of totality:[23]

“ A consecutive term of five months imprisonment was a proper sentence in all the circumstances, and the resulting overall sentence of eight years and five months imprisonment does not begin to offend the principle of totality.”

Totality

58.There is no dispute that in the sentencing of a defendant in the position of the appellant, having determined the correct sentences to be imposed on each of the two charges, the judge must have regard to the principle of totality of sentence.  Although the judge did not state that he did so, we have no doubt that he did have regard to the issue of totality.  It is a basic and fundamental principle of sentencing.  There is no need for a judge to say that he has done so.  I am satisfied that the core element of the offence of failing to surrender to custody without reasonable excuse is a contemptuous breach of a promise to a court, which thereby brings the administration of justice into disrepute.  It is that element that distinguishes it from the substantive offences with which defendants are charged in any particular case.  It is that consideration that has led the courts in this jurisdiction and in England and Wales to determine that if a custodial sentence is to be imposed, normally it is to be made consecutive to the sentence imposed for the substantive offence.

59.I am satisfied that there is no merit in the submission that the judge erred in doing so and that he ought to have ordered two months of the sentence of imprisonment imposed in respect of Charge 2 to be served concurrently with the sentence of imprisonment imposed in respect of Charge 1.  The overall sentence of 32 months’ imprisonment imposed on the appellant was appropriate.  Certainly, it lay squarely within the judge’s discretion in sentencing.  I would dismiss the appeal.

60.I agree with Macrae JA, that it is time that this Court re-examined what constitutes a ‘timely plea’, an ‘untimely plea’ and the consequences in the latter circumstances.  This Court, similarly constituted, adjourned the hearing in another appeal [24] on 21 January 2016, directing the appointment of leading counsel as an amicus curiae, in order to receive submissions on the issue of the Court’s current sentencing practice in respect of the one-third discount afforded to a defendant for his plea of guilty, in light of the Sentencing Guidelines Council’s (England and Wales) guideline, ‘Reduction in Sentence for a Guilty Plea.’

Hon Macrae JA:

61.This case raises the recurring question of whether there is an overlap in sentencing when a defendant who has previously absconded pleads guilty to a substantive charge and is given a reduced discount for his plea on account of his absconding, but at the same time receives a separate sentence for the offence of absconding.  The problem is sometimes referred to as “double-counting”. Throughout this judgment, I shall refer to the offence of failing to surrender to custody under section 9L of the Criminal Procedure Ordinance, Cap 221, as “absconding”.

62.In this particular instance, the appellant was originally due to be tried in the District Court on 17 February 2011.  However, he failed to turn up at his trial and was not re-arrested until 27 June 2014.  Having been brought back before the District Court, he was sentenced to 2 years and 4 months’ imprisonment from a starting point of 3 years for burglary, which represented a discount for plea of just over 22%.  For the additional charge of absconding, he was given a consecutive sentence of 4 months’ imprisonment from a starting point of 6 months, which represented the customary one-third discount for plea.  Thus, the overall sentence passed was 2 years and 8 months’ imprisonment.

63.The issue of whether the courts should penalise a defendant by reducing his discount for failing to enter a “timely plea”, and if so by how much, has been a matter of concern to the courts before.  In HKSAR v Poon Chum Kong (unrep., CACC 228/1999), for example, the Court of Appeal said of this issue:

“ One of us was initially concerned about that approach. A person admitted to bail who fails to surrender to custody when called upon to do so commits an offence punishable with imprisonment: see section 9L of the Criminal Procedure Ordinance (Cap 221). To deny a defendant who absconded the discount for his plea of guilty which he would otherwise have been given could be said to be tantamount to punishing him for committing that offence. He is, in effect, serving an additional sentence for having absconded when he had not been charged with that. It could be said that it was wrong to treat the defendant in a way which has the effect of him receiving an additional sentence of imprisonment for an offence for which he had never been charged.”

64.The Court overcame its concerns for reasons I shall return to.  Accordingly, it upheld the discount accorded the applicant by the sentencing judge of 25%. However, it may be noted that in Poon Chum Kong, the applicant had not in fact been charged with a further offence of absconding.  We do not know, therefore, how the Court might have resolved the matter of discount in respect of the substantive offence, if the applicant had been charged and sentenced for a separate offence of absconding.

65.It is also clear, from a review of relevant authorities, that the courts have not adopted a particularly consistent approach to sentence where a defendant is sentenced in respect of the substantive offence in circumstances where he has absconded.

66.In Secretary for Justice v Choi Wing Wah [1998] 4 HKC 373, the respondent had absconded whilst on bail for the offence of conspiracy to rob.  The report does not make clear for how long the respondent had absconded, but given that the offence was committed in October 1993 and the Application for Review was heard in July 1998 following sentence in the High Court, one may assume that it was in the order of 3 to 4 years.  The Court considered that the discount for plea should have been 4 years rather than 5 years, from a starting point of 15 years’ imprisonment.  This represented a discount for plea of just over 26%.  As in Poon Chum Kong, there was no separate charge of absconding brought against the respondent.

67.In HKSAR v Leung Wai Shan (unrep., CACC 521/2002), the applicant had absconded for what, according to the judgment in relation to other applicants in a related appeal [25], could not have been more than 3 years, although the exact period was not identified in the judgment.  The Court remarked that since D12 had absconded before trial in respect of a charge of conspiracy to defraud, “a 25% discount was the very most she could expect in order to distinguish her from her co-defendants who had entered timely pleas of guilty, all of whom received a one-third discount”.  As in Poon Chum Kong and Secretary for Justice v Choi Wing Wah, there was no separate charge in relation to her absconding.

68.In HKSAR v Lam Lai Chu Patsy (unrep., CACC 56/2003), the applicant had been bailed to appear for her plea to be taken in the Magistrates’ Court in August 2002 on a charge that as a tenant, she had permitted premises to be used as a divan. She absconded and was not re-arrested until three months later.  On being brought back to court, she indicated that her plea would be guilty and she was then transferred to the District Court.  The Court of Appeal, for reasons it is not necessary to go into, decided to undertake the sentencing exercise afresh and, from a starting point of 20 months’ imprisonment, accorded the applicant a discount of 25% “to reflect (her) late plea bearing in mind that she absconded while on bail”.  As in Poon Chum Kong, Leung Wai Shan and Secretary for Justice v Choi Wing Wah, there was no separate charge of absconding.

69.In HKSAR v Kwok Shiu To [2006] 2 HKLRD 272, the applicant absconded for a period of some 4½ years whilst on police bail in respect of nine charges of theft, to which he ultimately pleaded guilty in the District Court.  The Court considered that a discount of 20% from the overall starting point was appropriate “to reflect his absconding while on bail”.  As in Poon Chum Kong, Leung Wai Shan, Secretary for Justice v Choi Wing Wah and Lam Lai Chu Patsy, there was no separate offence of absconding brought against the applicant.

70.In HKSAR v Kwan Po Keung [2012] 2 HKLRD 12, the applicant had absconded before his trial in the District Court on three charges, namely, obtaining property by deception, burglary and handling stolen goods.  The Court considered that a 25% discount was appropriate in circumstances where the applicant had absconded from his trial for some 12½ years, where he had surrendered voluntarily and not committed any offences whilst at large.  It may be noted that there was no sentence passed on a further charge of absconding, which was ordered to lie on the file marked not to be proceeded with without leave of the court.[26]   Accordingly, the position of the applicant in this regard was no different from the applicants in Poon Chum Kong, Leung Wai Shan, Lam Lai Chu Patsy, Kwok Shiu To, and the respondent in Secretary for Justice v Choi Wing Wah, against whom there were no charges of absconding to be dealt with in addition to the substantive offences involved.  No issue of double-counting, therefore, arose in these cases: the only question was the level of discount for an untimely plea.

71.I turn now to the decisions of the Court of Appeal where charges of absconding were brought and dealt with in addition to the substantive offence.

72.In HKSAR v Yip Kwok To (unrep., CACC 352/2004), the applicant had failed to appear on the first day of his trial in July 2003 in respect of six charges of theft. He was subsequently re-arrested in June 2004 during a stop and search operation.  The following month he pleaded guilty to all six charges and a further charge of absconding.  In sentencing the applicant, the judge reduced the discount for plea for the substantive offences by about 22% and ordered a sentence of 4 months’ imprisonment for absconding to run consecutively to the sentences for the thefts.  It will be seen that the judge had adopted a very similar approach to the judge in the case before us, resulting in an overall sentence in that case of 3 years and 4 months’ imprisonment.

73.The Court held, at para 9, the judge was entitled to give less than the usual one-third discount because he had absconded, although no argument appears to have been addressed to the Court in relation to the quantum of the consecutive 4 months’ imprisonment for the absconding offence.  However, the Court said, at para 10:

“ Finally, the fact that the judge certainly had the totality principle in mind was clearly shown by the care with which he took to arrive at the total sentence which could not be said to be manifestly excessive.”

It is clear from that statement, that the Court was satisfied that at least the judge himself had borne in mind the principle of totality and, further, that the overall sentence was not manifestly excessive.  Both parties before us accept that totality is still a consideration, even where the sentence for absconding is made wholly consecutive to the sentence for the substantive offence(s).  In the recent English case of R v Barnes [2013] EWCA Crim 1837, the Court said of an argument that the making of 5 months’ imprisonment for absconding consecutive to the sentence for the substantive offence of causing death by dangerous driving offended the principle of totality:

“ 30. A consecutive term of five months’ imprisonment was a proper sentence in all the circumstances, and the resulting overall sentence of eight years and five months’ imprisonment does not begin to offend the principle of totality.”

In the present case, the respondent acknowledges that the judge did not anywhere advert to the principle of totality. I shall return to this matter again later.

74.In HKSAR v Ko Chun Hung (unrep., CACC 71/2007), the applicant was due to face trial on two charges of theft in the District Court in January 2005.  He failed to turn up at his trial and was not re-arrested until January 2007, when he returned to the jurisdiction from Macau.  The judge granted a discount of only 16.66% from the starting point for the substantive theft charges because of the late plea and, further, passed a consecutive sentence of 4 months’ imprisonment, which he discounted by one-third from a starting point of 6 months.

75.In examining whether the overall sentence passed could be said to be manifestly excessive, the Court acknowledged that:

“ 26. The discount of less than 20% to reflect his guilty pleas was not a generous discount. However, there was a valid reason for it and we were not persuaded that such discount justified our interference.

27.    In any event, we were not persuaded that the total sentence of 34 months’ imprisonment imposed on the applicant was manifestly excessive.”

76.The judge in the case before us was plainly influenced by this authority because he cited it in his Reasons for Sentence.[27] However, it should be borne in mind that the Court in Ko Chun Hung was considering an overall sentence for two serious offences of organized pickpocketing, which it described as follows:

“ 31. The applicant committed the offences in conjunction with others; he was part of an organized and possibly professional ring of thieves who committed the offences with the use of a taxi; the offences were committed at the busy street corner of Nathan Road/Changsha Road in Mongkok; and the offences were targeted at tourists, thus damaging the reputation of Hong Kong; and the applicant was, of course, a repeat offender.”

Not surprisingly, the Court concluded, at para 32, that the sentences, far from being excessive, were in fact “quite moderate” and that if the offences had been committed after the decision in HKSAR v Yip Chung-man [2007] 4 HKC 48 had been delivered, “the applicant could have expected a substantially longer sentence”.  Although no argument was addressed by appellate counsel in Ko Chun Hung as to the length of sentence in respect of the absconding charge, the Court held that the judge was entitled to impose an additional 4 months’ imprisonment for the offence.

77.It seems to me, therefore, that on a careful reading of the judgment in Ko Chun Hung, the Court was acknowledging that the discount for sentence on the substantive offences was not generous, but that the overall sentence could have been longer and was in fact lenient.  One must remember that the function of an appellate court is to determine whether the ultimate sentence is manifestly excessive, whatever the mechanics by which the judge has arrived at the result.

78.In HKSAR v Leung Yau Wing, Victor(unrep., CACC 444/2003), the applicant had been granted bail by the ICAC in November 2012 in respect of a charge of soliciting an advantage, but decamped to the Mainland and did not materialise at his trial in August 2013.  He was re-arrested in October 2013, after duly advising the authorities that he intended to return to Hong Kong.  The judge in the District Court nevertheless accorded the applicant a full one-third discount from the starting point for the substantive offence but added one month’s imprisonment for absconding.

79.The Court considered that the applicant should consider himself fortunate that the discount “was not reduced to the range of about 25%” from the starting point. As in Ko Chun Hung, the Court was obviously looking at the ultimate sentence passed on the applicant, despite the generous discount on the substantive offence, before concluding as it did, at para 31, that “the sentence of 3 years and 1 months’ imprisonment imposed on the applicant was entirely appropriate”.

80.If one were to divine some form of consistent thread in those cases where the defendant has been given a reduced discount for a late plea by virtue of his absconding but not dealt with separately for a discrete offence of absconding, it would seem that a discount of about 25% has been the more favoured discount.  As for the sentence for absconding, it seems that sentences in Hong Kong may vary according to the circumstances from 2 months to 4 months after plea of guilty.  Of course, there will be factors which may bear on the length of sentence, such as why the defendant absconded; how long he absconded for; whether he left the jurisdiction and, perhaps, how; the effects of his disappearance on the parties to the trial, including the witnesses; whether he surrendered voluntarily; as well as other relevant factors in aggravation or mitigation of the offence.

81.It is clear from many of the authorities cited, both in Hong Kong and the United Kingdom, that where a separate charge of absconding is brought, the sentence should generally be made consecutive to the sentence for the substantive offence(s).  The English authority cited in support of this proposition is R v White and McKinnon [2003] 2 Cr App R (S) 133.  However, I note than in White and McKinnon, the Court went on to say, at 135:

“ However, in any individual case, and of course if a very long sentence is imposed for a substantial offence calculated in terms of years, the court may consider that in the particular circumstances a sentence for failing to surrender to bail should be ordered to be served concurrently. That in the end must be a matter for the individual trial judge.”

The Court did not explain what it meant by a “substantial offence calculated in terms of years”, but I would have thought that White’s sentence of 6 years’ imprisonment for conspiracy to supply class A drugs was such a sentence, while McKinnon’s sentence of 5½ months’ imprisonment for taking a motor vehicle without consent was not.  The appellants received consecutive sentences of 6 months and 3 months’ imprisonment for theirrespective absconding.

82.I should also observe that in White and McKinnon, there was no discussion by the Court as to the appropriate discount for the plea of guilty, where there was also a separate charge of absconding.  In White’s case, the issue did not arise because he did not plead guilty: he was found guilty after trial.  McKinnon, on the other hand, pleaded guilty and received 5½ months’ imprisonment from a statutory maximum of 6 months, of which sentence for the substantive offence, the Court said, at 137:

“ In our judgment, the sentence which was imposed in respect of Count 2 in the indictment could have been somewhat less, having regard to the plea which was tendered, but the difference is not such that it would be appropriate for this Court to interfere.”

83.Accordingly, I am not persuaded that White and McKinnon supports the contention that, where a judge reduces the discount for plea on the substantive offence because of the defendant’s absconding, there must always be a wholly consecutive sentence for absconding when such a charge is additionally brought.  I note that in the commentary to the report of this case in the Criminal Law Review, where the names have become inverted, (see R v McKinnon and White [2003] Crim LR 424, at 425), Professor Thomas QC comments that:

“ It might be argued that there are two reasons why a court should hesitate before imposing a very short sentence for a relatively minor offence to run consecutively to a much longer sentence imposed for a more serious offence. The first is essentially an aspect of the principle of totality. The court should consider the fairness of the overall total sentence which is being imposed, and if a defendant has been sentenced to a long term for an offence of considerable gravity, to add a very short sentence for a bail offence, a breach of a community order or something of the same kind, looks like rubbing salt into the wound. The other consideration militating against the imposition of a very short sentence to follow a substantially longer sentence is that sometimes the addition of a few months to the sentence may change the offender’s status in relation to parole eligibility.”

84.Professor Thomas went on to canvass the counter argument in favour of imposing a short additional sentence in the circumstances of that case lest the failure to do so would create the impression that a bail offence can be committed with impunity, and concluded that the effect of the decisions seemed to be that a short consecutive sentence should normally be imposed for a bail offence, subject to the qualification that it did not have a disproportionate effect on the length of time actually served under the aggregate sentence.  Clearly, on his analysis, and also on mine, totality must be relevant, which is echoed in the judgment of the Court in Yip Kwok To, to which I have referred at para 15 supra.

85.What concerns me about this whole area of sentencing is that, whilst I appreciate the conceptual differences between reducing a discount for an untimely plea and punishing a defendant for the separate criminal offence of absconding, there must inevitably be a degree of overlap in the considerations which justify a court in reducing the discount and those which indicate the length of sentence for absconding.  Returning to the reasons which overcame the Court’s concerns in Poon Chum Kong, the Court said this:

“ However, any initial misgivings about that approach have now been laid to rest. The reason why the discount is reduced in these circumstances is because the plea of guilty is not tendered at the earliest opportunity. Indeed, the effect of the applicant absconding was that there had to be a second trial. He was not therefore being punished for absconding. He was being denied the discount to which he would otherwise have been entitled because of the consequences of his absconding, namely that his plea of guilty was in the circumstances a late plea and that a second trial was necessary. If one of the justifications for giving a discount for a plea of guilty is the saving of the expense of a contested trial, that was to some extent neutralised in the present case by the expense of an albeit short second trial.”

86.This reasoning as to the practical consequences of absconding for the courts on otherwise “timely pleas” finds resonance in a number of the other authorities to which I have referred.  In Ko Chun Hung, for example, the Court said:

“ 24. We accept that having been sentenced to 4 months’ imprisonment for absconding and then not being granted the full one-third discount for pleading guilty again because of absconding, the applicant appeared to have been punished twice for the same facts. However, there was a logical foundation for it.

25.  By absconding, the applicant had committed a fresh offence and had to be punished separately.  By absconding, the applicant also rendered the administration of justice more costly and more time-consuming, and the judge was entitled to exercise his discretion by reducing the percentage of discount that he would otherwise have obtained.”

See also Leung Yau Wing, Victor, at para 29.

87.I would accept that pleas entered following any period of absconding are not timely.  However, the notion of a “timely plea” has become somewhat distorted, and regrettably devalued, by the way our courts have over many years come to accord the one-third discount to any plea, however untimely, as long as it is entered before the trial is due to begin.

88.Thus, the defendant on a rape charge, who indicates his intention of contesting his guilt, thereby obliging the case to be fully prepared with expert DNA and other scientific evidence and fixed for trial before the High Court, with the jury about to be empanelled and the traumatised victim poised to give evidence, will receive the same discount if he pleads guilty at arraignment as the drug trafficker who tenders a plea of guilty in the magistrate’s court and is committed to the High Court for sentence.  The defendant who obliges the prosecution to prepare a complex fraud case over months, sometimes years, with flow charts, schedules, banker’s affirmations and expert accounting evidence, on the basis that he will plead not guilty but then changes his plea on the first day of a trial set down for several months, will generally receive the same discount for that plea as the defendant who acknowledges his guilt from the outset, cooperates with the authorities and demonstrates genuine remorse.

89.It seems to me that the concept of a “timely plea” has now lost much of its meaning, yet the “untimeliness” of the plea when a defendant absconds prior to trial and is subsequently re-arrested and charged with absconding is regarded as justification for reducing his discount for the original substantive offence, notwithstanding the addition of a consecutive element of sentence for having absconded.  The noted American jurist, Oliver Wendell Holmes, put it well when he said:

“ A good catchword can obscure analysis for 50 years.” [28]

90.With respect, it is time the courts examined again what it is that amounts to a genuinely “timely plea”, what is not “timely” and what the sentencing consequences are for the “untimely plea”.

91.Having said that, I recognise that the weight of appellate authority obliges me to find that the discount in the case before us should have been reduced, since it was not a “timely plea”.  I also recognise that the applicant also fell to be dealt with for committing the separate criminal offence of absconding.  So far as the reduction of discount for absconding, as the matter presently stands, it looks as though the normal range of discount should lie between 20% and 25% depending on the circumstances, with most of the Hong Kong cases favouring around 25%.  Whilst no judge would have been criticised, on the current state of the authorities, for considering a discount for plea in this case of 25%, I could not say that the judge’s adoption of a discount of around 22% was outside the range of discounts open to him in the exercise of his sentencing discretion.  As the Court said in HKSAR v Sun Yu Hing (unrep., CACC 398/2010) of the adoption by a judge of a 20% discount:

“ 31. There was a logical foundation for the 20% discount instead of the usual one-third for a guilty plea and the judge’s exercise of discretion should not be interfered with even though a higher discount of 25% might have been adopted in other cases.”

92.In respect of the sentence for absconding, it was necessary for the judge to bear in mind the principle of totality and to acknowledge that he had considered it, given that his discount for sentence for the substantive offence had already been reduced by around 22%, in order to prevent any double-counting where similar considerations are taken into account twice in the sentencing process, and to ensure that the sentence was not rendered disproportionate to the overall criminality involved.  In Barnes, the English Court said, in relation to the complaint of double-counting in that case:

“ 29. That cannot be sustained. The judge spelled out in terms that he was aware of the risk of double counting and had avoided it. Furthermore, as the judge pointed out, this was a very grave offence of failing to surrender in itself. Not only does the absconding have to be set in the context of the seriousness of the offence in question (the liability for which the appellant was trying to evade), but one has to consider just what happened. This was a carefully planned and determined attempt to abscond, which succeeded. She absconded for a considerable period of time. The circumstances of arranging her absconding must have been sophisticated. She went abroad, which is in itself a serious matter, and she then remained abroad for a very considerable period of time, thus gravely impeding the good administration of justice.” (Emphasis supplied)

93.In the present case, not only did the judge not refer to the principle of totality, but he expressed himself in the following terms:

“ As the 1^st charge and the 2^nd charge are distinct and separate offences, I would order that the sentence for the 2^nd charge is to run consecutively to the sentence for the 1^st charge. The total sentence is one of 32 months’ imprisonment in respect of both charges.”

Whilst I might in a normal case be prepared to assume that a judge has borne in mind the principle of totality in sentence, even where he does not mention it, it seems from the way he expressed himself that he considered the sentence for absconding had to be made wholly consecutive to the sentence for the substantive offence because it was a separate and distinct offence.  I am not satisfied, in the circumstances, that the judge took one final look at the overall sentence to see whether it was proportionate and justified in relation to the overall criminality displayed. The importance of doing so achieves a particular relevance and significance where, as in this case, there is an obvious issue or concern about double-counting.  As the Court in HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 observed, at 254:

“ 51. The purpose of the totality principle is to achieve a just and balanced sentence that will not punish the defendant twice for the same conduct and will not be crushing to him.” (Emphasis supplied)

94.Mr Beel has referred, in this regard, to the judgment in a Single Judge leave application[29] on appeal from the District Court where a District Court judge had, in accordance with the principle of totality, ordered two months of a sentence of 4 months’ imprisonment for absconding to run consecutively to a sentence of 2 years and 8 months’ imprisonment for trafficking in a dangerous drug, the remaining two months to run concurrently.  He points out that the Court did not say that it was inappropriate to have so ordered in that particular case.

95.To be fair to the judge in the present case, he did not have the benefit of the plethora of authorities and other material which have been helpfully provided to us and elaborated upon by Mr Chan, with him Ms Lo, for the respondent, and by Mr Beel, for the appellant, for whose endeavours we are very grateful.

96.In the result, and for the reasons I have given, I would allow this appeal.  I would leave the sentence of 2 years and 4 months’ imprisonment for the burglary charge undisturbed.  I would also uphold the sentence of 4 months’ imprisonment for the absconding offence, but make 2 months of the sentence consecutive to the sentence for the burglary offence, leaving the remaining two months to run concurrently with the burglary sentence.  Accordingly, the overall sentence would become 2 years and 6 months’ imprisonment, in place of 2 years and 8 months.

Hon Yeung VP:

97.By a majority decision, the appeal against sentence is dismissed.

Mr David Chan ADPP and Ms Rosa Lo SPP, of the Department of Justice, for the respondent

Mr Trevor Beel, instructed by Hoosenally & Neo, assigned by Director of Legal Aid, for the appellant

[1] HKSAR v Leung Yau Wing (CACC 444/2013; unreported, 25 November 2014); HKSAR v Chan Ka Po, Joseph (CACC 29/2000; unreported, 14 June 2000); HKSAR v Sun Yu Hing (CACC 398/2010; unreported, 1 June 2011); HKSAR v Kwok Shiu To [2006] 2 HKLRD 272; HKSAR v Yeung Kin Chai [2009] 3 HKC 35.

[2] HKSAR v Poon Chum Kong (CACC 228/1999; unreported, 12 August 1999); HKSAR v Leung Yau Wing (CACC 444/2013; unreported, 25 November 2014); HKSAR v Ko Chun Hung (CACC 71/2007; unreported, 21 November 2007).

[3] HKSAR v Kwok Shiu To [2006] 2 HKLRD 272.

[4] HKSAR v Kwok Shiu To, page 277 I-J, paragraph 23.

[5] HKSAR v Kwan Po Keung [2012] 2 HKLRD 12.

[6] HKSAR v Kwan Po Keung, page 23, paragraph 30.

[7] HKSAR v Poon Chum Kong (CACC 228/1999, unreported, 12 August1999).

[8] HKSAR v Poon Chum Kong, page 4.

[9] HKSAR v Ko Chun Hung (CACC 71/2007; unreported, 21 November 2007).

[10] HKSAR v Ko Chun Hung, paragraphs 24-26.

[11] HKSAR v Leung Yau Wing, paragraph 35.

[12] HKSAR v Yeung Kin Chai, paragraph 24.

[13] Section 6 of the Bail Act, 1976.

[14] Consolidated Criminal Practice Direction (Amendment No.3) (Bail: Failure to surrender and trials in absence)-paragraph 1.13.2. 

[15] R v Andrew Ross White, Neil McKinnon [2003] 2 Cr App R(S) 29.

[16] R v Andrew Ross White, Neil McKinnon, page 135, paragraph 4.

[17] R v Gorman (1993) 14 Cr App R (S) 120.

[18] R v Andrew Ross White, Neil McKinnon, page 135, paragraph 7.

[19] The Consolidated Criminal Practice Direction (Amendment No 3). (Bail: Failure to Surrender and Trials in Absence)-22 January 2004; [2004] 1 Cr App R. 28.  See pages 402-4 H3; I 1.13.4 and I.13.13.

Practice Direction (Criminal Proceedings) [2013] 1WLR 3164. See page 3192 G-H; 19 C.1-2. C.

Sentencing Guidelines Council’s guideline ‘Fail to Surrender to Bail’-2007.

[20] Sentencing Guidelines Council’s guideline ‘Fail to Surrender to Bail’-2007; paragraph 33.

[21] R v Barnes [2013] EWCA Crim 1837, 4 October 2013.

[22] R v Barnes, paragraphs 28-9.

[23] R v Barnes, paragraph 30.

[24] HKSAR v Ngo Van Nam (CACC 418/2014).

[25] HKSAR v Wong Fung Ming and others (unrep., CACC 515/2001).

[26] HKSAR v Kwan Po Keung [2012] 2 HKLRD 12, at para 1.

[27] Appeal Bundle, p 14J-L.

[28] Recited by Wendell Willkie, at an America’s Town Meeting of the Air, broadcast on 6 January 1938.

[29] HKSAR v Wu Hoi Ting (unrep., CACC 154/2013).  The length of absconding before the applicant was re-arrested was 6 weeks.