Read the full judgment text of CACC 418/2014 and CACC 327/2015 on BabelCite. This Court of Appeal judgment was delivered on 2 September 2016 before Wally Yeung VP, Michael Lunn VP, Andrew Macrae JA.
Criminal law – sentencing – guilty plea discount – one-third discount for timely plea – voluntary confession – whether discount beyond one-third is warranted – revision of discount practice for pleas at different stages of proceedings. CACC 418/2014 concerns an appellant who was intercepted by police at a MTR station and confessed to a robbery committed three months earlier with two Vietnamese accomplices where the taxi driver was threatened with a knife; the judge rejected the claim of voluntary surrender, finding the appellant was merely intercepted, and sentenced him to 53 months for robbery (7 years starting point reduced by one-third for guilty plea plus additional 3 months for volunteered confession) and 15 months for unlawful remaining in Hong Kong (with 10 months consecutive), totalling 5 years 3 months. CACC 327/2015 concerns a Nigerian drug courier arrested with 2,410.28 grammes of methamphetamine hydrochloride concealed in handbags who pleaded guilty three days before an 8-day trial was due to start; the judge took 24 years as starting point (22 years plus 2 years for international element) and applied a 25% discount to impose 18 years' imprisonment. The Court of Appeal held that a defendant who merely confesses after being intercepted is not entitled to a discount beyond the one-third for guilty plea, as cooperation with police is subsumed within the one-third discount following HKSAR v Ma Ming; only a conscience-stricken defendant who voluntarily surrenders to authorities and admits offences despite total lack of evidence may exceptionally receive more than one-third. The court reaffirmed that being caught red-handed or pleading in the face of overwhelming evidence is not a sufficient reason to disallow the full one-third discount. In CACC 327/2015, the court allowed the appeal because the judge failed to warn defence counsel of her intention to depart from the one-third discount given the prevailing state of the authorities, depriving counsel of the opportunity to make submissions. The court also revised the general practice of guilty plea discounts: one-third discount for pleas indicated at Plea Day; 20% for pleas on the first day of trial; between 25% and 20% for indications after trial dates are fixed but before the first day of trial; and less than 20% for pleas during the trial itself, all subject to the judge's overriding discretion. The revised practice applies only to defendants reaching the relevant stages in future criminal proceedings.
Legal issues: Discount beyond one-third for voluntary confession when complicity unknown to police · Revision of discount practice for guilty pleas at different stages of proceedings · Adequacy of notice of reduced discount in CACC 327/2015
Outcome: In CACC 418/2014, the appeal against sentence is dismissed. In CACC 327/2015, leave to appeal is granted, and the appeal is allowed with the sentence reduced from 18 years to 16 years' imprisonment.
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