HKSAR v. Kwan Ming Ho

CACC 199/2017

[2018] HKCA 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 199 OF 2017

(ON APPEAL FROM DCCC 824/2016)

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REASONS FOR JUDGMENT

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1.The applicant appeared in the District Court charged with five offences. He pleaded guilty to the 1^st, 3^rd, 4^th and 5^th charges on the Charge Sheet.

2.The 1^st charge is “Claiming to be a member of a triad society”, contrary to section 20(2) of the Societies Ordinance, Cap 151.  The 3^rd charge is “Blackmail”, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210.  The 4^th charge is “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210.  All these charges arose from the one incident.

3.The 5^th charge, relating to a separate incident, is also “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210.

4.The applicant appeared before District Judge Douglas TH Yau (“the judge”) and pleaded guilty to the four charges.  On 22 June 2017 he was sentenced by the judge to a total sentence of 35 months’ imprisonment and now applies for leave to appeal against the sentences. 

5.At the hearing of the application I refused it but said I would hand down my reasons for doing so at a later date.  This I now do.

The charges

6.The 1^st, 3^rd and 4^th charges all occurred on 6 November 2015 and involved the victim referred to in the charges as X.

7.The 5^th charge occurred on 24 November 2015 and the victim of this charge was a different person.

8.The first incident that is the subject of the 1^st, 3^rd and 4^th charges involved the applicant deliberately bumping into the victim and then an accomplice claiming that the victim had deliberately bumped his “big brother”.  The applicant claimed to the victim to be a member of a triad society with many followers in the Wanchai district.  This led to demands for compensation which in turn led to the victim having HK$19,200 taken from his account. 

9.The 2^nd incident, involving a different victim, arose when the applicant’s accomplice claimed to the victim that he was a triad and induced the victim to accompany him to see his protector in Mongkok.  Because the victim was scared he complied with this request.  They subsequently met up with the applicant who requested the victim to lend him his bank card so that he could make a transfer HK$200 to a friend.  Because the victim believed the applicant was a member of a triad society he was scared he would be beaten if he did not comply with this request.  The victim later found that HK$19,500 had been taken from his account.  Furthermore, the applicant had stolen his mobile phone when the applicant had asked to borrow it.

The judge’s Reasons for Sentence

10.The applicant has an appalling criminal record.  He has been sentenced on 18 occasions, resulting in 28 prior convictions.  These convictions date back to 1992 when the applicant would have been only 19 years of age.  That first conviction was for an offence involving violence as were convictions in 1995, 2000, 2002, 2009, 2010 and 2016.  The offences in 2002 and 2016 were assaults on police officers. 

11.The applicant also had convictions for what clearly seem to be triad related offences.  Apart from his previous convictions were for “Claiming to be a member of triad society” in 1995, 1996 and 2007 he also had a conviction in 2007 for inviting another to become a member of a triad society.  There were also previous convictions for “Criminal damage”, “Blackmail”, three for “Theft” or “Attempt theft” and three other convictions involving dishonesty.      

12.The most recent conviction was on 8 May 2017 and was a case of Criminal Intimidation for which he received a sentence of 9 months’ imprisonment.  He had completed this sentence by the time he was sentenced for the present offences.  

13.At the time of sentencing the applicant was 44 years old and married with five children. 

14.The applicant’s counsel asked the judge to not treat the applicant’s criminal record as an aggravating factor and also asked the judge to give a sentencing discount to the applicantfor his efforts to assist the police by giving a non-prejudicial statement identifying his accomplice.  However, the Department of Justice did not prosecute the accomplice because the applicant’s information was insufficient for a prosecution.  Furthermore, the accomplice could not be identified by the victims in the two incidents.

15.The judge then proceeded to indicate what starting point he would adopt for the various offences.  He said that for the blackmail offence (3^rd charge) the appropriate starting point was 3½ years’ imprisonment and for the “Claiming to be a member of triad society” (1^st charge) and the related “Theft” charge (4^th charge) he would adopt 12 months’ starting points for each of the offences. 

16.He said that the applicant’s commission of the offences contained in the 1^st, 3^rd and 4^th charges should be regarded as arising from the one incident and should therefore be ordered to be served concurrently. 

17.After giving the applicant a one-third discount for his plea of guiltythe final total sentence for these three charges came to 28 months’ imprisonment. 

18.The judge then turned to the 5^th charge.  In respect of this charge he noted that it involved a premediated offence which was well planned and executed.  He described the circumstances surrounding the offence as serious. He said the appropriate starting point for this charge was 15 months’ imprisonment which he then reduced to 10 months’ imprisonment after allowing the applicant a one-third discount for his guilty plea. 

19.The judge then turned to the totality of the sentences and said:

“45.   The theft in the Second Incident that took place 18 days after the first set of offences was unconnected to the earlier offences. Taking a step back, I find that 9 months of the sentence in charge 5 should be served consecutively to the 28 months sentence for charges 1, 3 and 4, the balance to be served concurrently, resulting in a sentence of 37 months’ imprisonment.”

20.After determining that the appropriate totality was 37 months’ imprisonment the judge then turned to the question of whether this totality should be enhanced for the presence of any aggravating factor or reduced to allow for any mitigating factor.  In relation to the applicant’s criminal record he said:

“47.   The offences were minor, as suggested by the relatively light sentences, and of a different nature. I do not hold the defendant’s then record against him and do not consider it to be an aggravating factor.”

21.The judge then addressed the question of whether any further discount should be given to the applicant for his efforts to assist the authorities.  On this issue he said:

“49.   Although the prosecution decided that the defendant’s statement would be insufficient to secure a conviction against the accomplice, no doubt having in mind the victims’ inability to identify him, I find that some credit should be given for the defendant’s willingness and attempt to assist the Police in identifying the accomplice.

50.  For this mitigating factor, I will reduce the defendant’s sentence by 2 months.

51.  The sentence after applying this two month discount is 35 months’ imprisonment.”

22.The judge then went on to consider whether he should take into account the sentence that was imposed on the applicant on 8 May 2017.  Had the present offences been dealt with at the same time as the case on 8 May 2017 then, the judge recognised, a different view on the sentence totality might, arguably, have been taken.  The way the judge resolved this issue is apparent from the following comments in his Reasons for Sentence:

“53.   Had the two cases been dealt with together, the court will have to apply the principle of totality accordingly and decide how the sentences in that and the present case should be served.

54.  Since the defendant had already served the sentence in the earlier case, the only way to apply the principle of totality would be for the present sentence to be discounted accordingly, should it be decided that part of the sentences should be served concurrently.

55.  Mr Leung very helpfully, and fairly, informed the court that the defendant’s commission of the earlier offence is entirely unconnected to any of the offences in the present case. They were committed on different days and under different situations.

56.  Having applied my mind to the matter, I find that given the lack of any connection between the two cases, had they been dealt with together, I would have ordered the sentence of the earlier case to be served wholly consecutively to the sentence in the present case.

57.  I also find that the resulting sentence of 44 months’ imprisonment would not have a crushing effect on the defendant and would be a fair and proper sentence for the two cases.

58.  I will, therefore, not grant the defendant any discount in the present case on this basis.

59.  The defendant is, therefore, sentenced to 35 months’ imprisonment for the present case.”

The applicant’s grounds of appeal

23.In his Perfected Grounds of Appeal Against Sentence the applicant complains that the overall sentence of 35 months was excessive in all the circumstances of this case. 

24.The second ground of appeal complains that the two months reduction for his assistance to authorities was insufficient and that a 40%‑45% discount should have been awarded to the applicant. 

25.His final ground of appeal is that in considering the principle of totality for the two incidents in this case the judge gave too little discount (one month only) in ordering that 9 months of the 10 months’ sentence for the 5^th charge should be served consecutively to the sentences on the 1^st, 3^rd and 4^th charges.  Under this ground of appeal he also complains that in considering the principle of totality the judgedid not have regard to the sentence of 9 months’ imprisonment passed on the applicant on 8 May 2017.

Discussion

26.Given the separate nature of the two incidents which gave rise to the present offences and given the serious circumstances surrounding their commission I do not regard as reasonably arguable the complaint that the total sentence is manifestly excessive.

27.The criminal record of the applicant shows him to be a violent, dishonest, lawless person who has not learnt anything from his previous court appearances.  Having seen his criminal record I cannot understand how the judge could have concluded that the applicant was not in need of additional deterrence in his sentence.  The applicant is extremely fortunate that the starting points were not enhanced.

28.In respect of the second ground of appeal I have read the non-prejudicial statement of the applicant.  It is true that he gave the police the name of his accomplice but apart from that he said he had no other personal information on him.  When speaking to the circumstances of the present offences he said:

“However, I have forgotten the details of the above cases, as they had been too long ago.”

Yet the applicant remembered enough of “the details” of these cases to put the blame for them entirely on the accomplice. 

29.It is hardly surprising that the DPP concluded that his statement did not provide a sufficient basis for prosecution.  In my view the applicant is fortunate to have received any discount at all for his “efforts” to assist the authorities.  In my view it is not reasonably arguable that he should have received a discount greater than the two months that the judge awarded him.

30.The third ground of appeal complains that the judge erred in two respects in his assessment of the appropriate totality.  In relation to the charges before the judge it is submitted that the judge erred in ordering that 9 months out of the 10 months’ sentence should be served consecutively.  The second error is said to be the refusal by the judge to take into account the sentence imposed on the applicant on 8 May 2017.  

31.The judge gave detailed reasons explaining how he assessed the overall totality appropriate for this applicant and why he refused to take into account the sentence of 8 May 2017.  I can find no error in the judge’s reasons and, as I have already said in respect of the first ground of appeal, I do not regard it as reasonably arguable that the final total sentence is manifestly excessive. 

Conclusion

32.For these reasons I refused the applicant leave to appeal his sentences.  I reminded the applicant of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.

Mr Pierre Lui SPP (Ag), of the Department of Justice, for the respondent

Mr Wong Po Wing, instructed by CO Yu & Co, assigned by DLA, for the applicant