HKSAR v. Wong Ka Fai and Another

CACC 231/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 231 OF 2015

(ON APPEAL FROM HCCC NO. 266 & 354 OF 2014)

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Before: Hon Macrae & Hon Pang JJA in Court

Date of Hearing: 23 November 2017

Date of Judgment: 23 November 2017

Date of Reasons for Judgment: 28 November 2017

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the Reasons for Judgment of the Court) :

1.These are applications out of time for leave to appeal against sentence on the ground that post-sentence assistance had been rendered to the authorities.

BACKGROUND

2.The applicants (“A1” and “A2”) were two of the five defendants in the consolidated case of HCCC 266 & 354 of 2014.  They were jointly charged with one of the other three defendants (“LAU”) on a count of ‘conspiracy to rob’ whereas the remaining two defendants were charged with a count of ‘handling stolen goods’.[1] To the conspiracy charge, A2 had pleaded guilty at the outset; A1 and LAU were convicted after trial.

3.For that offence, A1 and A2 were sentenced on 4 July 2015 and 28 July 2015 to 10 years’ imprisonment and 6 years and 8 months’ imprisonment respectively.  In relation to A2, because he was already serving a 12-month sentence for an unrelated matter, the judge, in applying the totality principle, ordered that ten months of that sentence should run consecutively to the 6 years and 8 months thus making his overall sentence one of 7 years and 6 months’ imprisonment.

THE FACTS

4.For present purposes, the facts of the robbery are of no significance.  Suffice it to say that LAU was commissioned to provide transport services for the victim to collect $4 million’s worth of electronic products when he in fact colluded with A1, A2 and “other persons unknown” to stage a robbery on the vehicle.  As observed by the sentencing judge,[2] the robbery was premeditated and well planned.  It involved orchestrating a fake traffic accident with another car and, at knife point, the victim was driven off for some distance before being pushed off the targeted vehicle.  In the end, only around $1.15 million’s worth of stolen goods were recovered.

SUBSEQUENT DEVELOPMENT

5.A1 and LAU applied for leave to appeal against their conviction (CACC 231 of 2015).[3] Giving judgment on 1 November 2016, the Court of Appeal refused A1’s application but, treating LAU’s application as the appeal proper, allowed LAU’s appeal.[4]

6.By order of the Court, a fresh indictment was filed on 14 November 2016 for LAU’s retrial.[5] LAU indicated his wish to plead guilty and, on 12 April 2017, did so.[6]  On 13 April 2017, he was sentenced to 6 years’ imprisonment for the same offence of ‘conspiracy to rob’.

THIS APPLICATION

7.On 28 April 2017, A2 filed his Notice of application for leave to appeal against sentence out of time.  On 4 May 2017, A1 did the same.  As their ground of appeal, both referred to the statement that they had given to the police; this and their willingness to testify as prosecution witnesses against LAU were said to have directly contributed to LAU’s ultimate plea of guilty.

RESPONDENT’S POSITION

8.By a letter dated 27 September 2017, the respondent confirmed to this Court that :

“ While waiting for [LAU’s] retrial, both [A1] and [A2] provided the Police with non-prejudicial statements against [LAU].[7] They gave concrete evidence as to the role of [LAU] in the robbery, including [LAU] acted as the ‘insider driver’ who proposed to cause a pre-planned traffic accident with [LAU’s] van and to rob the iPhones stored therein, and how they shared the crime proceeds after the robbery.

After serving the non-prejudicial statements to [LAU], he indicated his guilty plea at the Listing Hearing.

In view of the aforesaid, the Police are of the view that the non-prejudicial statements of [A1] and [A2] played as important role in securing the guilty plea and conviction of [LAU].”

9.Before us, the respondent has not retreated from the above position.

CONSIDERATION

10.Because there is merit in these applications, but also because the opportunity to render assistance did not arise until LAU’s retrial was ordered, we are prepared to overlook the applicants’ not inconsiderable delay in filing them.  Indeed, the respondent encourages that approach.

11.Applying the usual 40% discount for a defendant who  has provided assistance to the authorities without giving evidence, which discount is inclusive of the one-third reduction for a guilty plea,[8] the starting point of sentence of 10 years should, in the case of A2, be reduced to 6 years.  In deference to the sentencing judge, we would likewise order ten months of A2’s pre-existing 12-month sentence to run consecutively to the now 6-year starting point thus making his overall sentence one of 6 years and 10 months’ imprisonment.[9]

12.In the case of A1, he had not pleaded guilty to the offence and is not entitled to the one-third discount.  For the assistance he offered against LAU, however, he is entitled to a 6.7% reduction (40% - 33.3%) from the starting point of sentence of 10 years.  His final sentence is therefore one of 9 years and 4 months’ imprisonment.

13.In reaching the above conclusions, we have listened to submissions regarding the usefulness of the applicants’ help in bringing LAU to justice.  Although it was claimed that no retrial would otherwise have been possible, this was not accepted by the respondent who, having alluded to aspects of the available evidence, characterised the applicant’s help as significant.  With the applicants yielding finally on that point, we were satisfied that 40%, but not more, was the appropriate basis for working out their further discounts.

DISPOSAL

14.We allow the applicants’ out-of-time applications for leave to appeal against sentence and, treating the hearing of their applications as the appeal proper, allow the appeal.  Their sentences are to be adjusted as per paragraphs 11 and 12 above.

Ms Jasmine Ching, SPP, the Department of Justice, for the Respondent/HKSAR

Mr Alan So, instructed by M/s M.K. Lam & Co. assigned by Director of Legal Aid, for the 1^st Applicant

Ms Catherine Wong, instructed by M/s Ivan Tang & Co. assigned by Director of Legal Aid, for the 2^nd Applicant