HKSAR v. Galvis Silva Paola Andrea

CACC 133/2018

[2018] HKCA 656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 133 OF 2018

(ON APPEAL FROM DCCC NO 138 OF 2017)

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Before: Hon Zervos JA in Court

Date of Hearing: 28 September 2018

Date of Judgment: 28 September 2018

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J U D G M E N T

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1.On 4 May 2018, the applicant was sentenced by District Court Judge Edmond Lee to a total term of 2 years’ imprisonment, following her conviction on her own plea to offences of theft (Charge 1), attempted fraud (Charge 2), fraud (Charge 3) and failing to surrender to custody without reasonable cause (Charge 4).

2.The theft and fraud offences concerned the applicant finding two credit cards belonging to another in a taxi and subsequently using them to rent a hotel room.  She presented one of the cards to the receptionist at the hotel but it did not work because a PIN number was required.  She told the receptionist that the card belonged to her husband and she therefore did not know the number.  She then presented the other card, which did work, and two payments of $1,700 and $500 respectively were successfully transacted.

3.The failing to surrender to custody offence occurred on 24 August 2017, when the applicant did not appear, as required under her terms of bail, in the District Court for her plea and sentence in relation to this case. 

4.The applicant applies for leave to appeal her sentence on the basis that it was “too heavy”.  She submits two letters to the Court in which she repeats the matters raised in mitigation before the judge to justify her request for a lenient sentence. 

5.The judge in his comprehensive reasons for sentence set out the applicant’s background and mitigation.  She was born in Colombia in 1989.  At the time of the offence, the applicant was a Form 8 recognizance holder who was unemployed with a 4-year-old daughter.  Although, it is not clear when she came to Hong Kong, on 18 February 2009 she was fined $500 for breach of condition of stay. 

6.Other criminal offences followed thereafter.  On 22 April 2010, she was sentenced to a total term of 38 months’ imprisonment for trafficking and possession in a dangerous drug and possession of a Part 1 poison.  On 24 March 2014, she was sentenced to 4 weeks’ imprisonment for theft.  On 23 December 2014, she was sentenced to a total term of 4 months’ imprisonment for possession of a dangerous drug and equipment for consuming a dangerous drug.  On 1 March 2016, she was sentenced to total term of 2 months’ imprisonment suspended for 18 months and disqualified from obtaining a driving licence for a period of 12 months for various traffic offences.

7.In mitigation, it was submitted by defence counsel that the applicant had failed to attend the hearing for her plea and sentence because she was sick on the day, and that as she had all along indicated she would plead guilty, she should receive the full one third discount for her guilty pleas.  The judge noted, however, that the applicant had not surrendered herself to the authorities and had to be re-arrested. 

8.It was accepted by defence counsel that some enhancement should be given to the applicant’s sentence because of her status as a Form 8 recognizance holder at the time of the offence.  However, he urged the judge to impose a lenient sentence on the applicant for her display of remorse and personal circumstances, namely, that she was 7 months pregnant.

9.The judge was guided by HKSAR v Atienza Richard Montenegro, CACC 38/2016, 22 September 2016, unreported, in relation to the credit card fraud offences and adopted a starting point of 9 months’ imprisonment for the theft offence (Charge 1) and 3 years’ imprisonment for the fraud offences (Charges 2 and 3); and by HKSAR v Lo Kam Fai [2016] 2 HKLRD 308, in relation to the failing to surrender to custody offence and adopted a starting point of 6 months’ imprisonment on Charge 4.  No complaint can be made about the starting points imposed by the judge.

10.The judge correctly identified that the applicant’s status as a Form 8 recognizance holder was an aggravating factor in the present case, and following HKSAR v Sandagdorj Altankhujag and Another [2014] 1 HKC 206 and HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, enhanced her sentence on the credit card fraud offences by 3 months’ imprisonment. 

11.The judge gave the applicant the benefit of the full one third discount for her guilty pleas, which in the case of the credit card fraud offences could be viewed as being generous.  After indicating that she would plead guilty to the offences, the applicant failed to attend the court hearing fixed for her plea and sentence.  As a consequence, she caused considerable disruption to the administration of justice, and delayed her plea of guilty.  It was therefore open to the judge to give less than the one third discount that would normally be afforded to an accused for a timely plea of guilty.  See the concurring judgments of Yeung VP and Lunn VP in HKSAR v Lo Kam Fai [2016] 2 HKLRD 308.  In discussing this type of situation, Lunn VP noted that a discount for a guilty plea is reduced in circumstances not to punish the accused for absconding, but for the consequences of absconding which depending upon the particular circumstances in question may result in a late plea or other factors that justify a reduction to the discount that would otherwise be afforded to the accused.  See also HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.  The judge noted, and seem to be influenced by, the dissenting judgment of Macrae JA (as Macrae VP then was) on the issue of “double counting” where the accused is given a reduced discount for a guilty plea as well as punished for the offence of failing to surrender to custody without reasonable cause. 

12.As already noted, the applicant committed the offences on 16 September 2016, but by the time she was sentenced on 4 May 2018, she was about 7 months pregnant.  As a result of her pregnancy, the judge gave the applicant a reduction of 3 months to the starting points on Charges 1 to 4 for humanitarian reasons. 

13.Whilst normally a sentence would not be reduced because of the pregnancy of an accused, it is open to a court as part of its sentencing discretion to allow for some humanitarian consideration, but this will very much depend upon the particular circumstances of the offence and the offender.  See HKSAR v Cheung Chi-wai and Another, CACC 200/2000, 5 September 2000, unreported.  See also HKSAR v Ho Ka Nei, CACC 8/2014, 15 May 2015, unreported, at paragraph 14, which followed R v Kwok Lai-ling [1989] 1 HKLR 418, 420F-H, and R v Chan Lai-ha, CACC 78/1994, 2 August 1994, unreported, at paragraph 3.  

14.The judge sentenced the applicant as follows. On Charges 1 to 3, he adopted a starting point of 9 months’ imprisonment on Charge 1, and 3 years’ imprisonment on each of Charges 2 and 3 which he enhanced by 3 months for the applicant’s status as a Form 8 recognizance holder at the time of the offence.  He reduced the starting points by one third for the applicant’s guilty pleas and further reduced the sentence by 3 months for the applicant’s pregnancy.  This resulted in a sentence of 5 months’ imprisonment on Charge 1, and 23 months’ imprisonment on both Charges 2 and 3.  On Charge 4, he adopted a starting point of 6 months’ imprisonment which he reduced by one third for the applicant’s guilty plea and by 3 months for the applicant’s pregnancy, resulting in a sentence of 1-month imprisonment. 

15.Taking into account the totality principle, the judge ordered that the sentences of Charges 1 to 3 run concurrently and that the sentence on Charge 4 run consecutively with the concurrent sentences on Charges 1 to 3, resulting in a total sentence of 24 months’ imprisonment. 

16.It should be noted that the judge did not activate the suspended sentence in relation to the traffic offences because they were different and minor in nature.  This was not the correct approach to take in considering whether to activate a suspended sentence. 

17.The possible activation of a suspended sentence is dealt with under section 109C of the Criminal Procedure Ordinance, Cap 221. As specifically provided under section 109C(1)(d), a court is incumbent to activate a suspended sentence unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence.  If a court is of such an opinion, it is obliged to state its reasons.

18.A court should not question the suspended sentence, but rather properly give it effect by activating it, unless it would be unjust to do so because of subsequent circumstances.  An instance which may be viewed to be unjust to activate a suspended sentence is where the new offence is minor and trivial, but not where the suspended sentence is minor and trivial, or even different.  See Cross and Cheung, Sentencing in Hong Kong, Eight Edition, 2018, paragraphs [45-37] to [45-39].

19.Overall the judge treated the applicant fairly leniently in sentencing her for these offences, and she has no cause to complain about the sentence that was ultimately imposed on her.

20.It follows from what I have said that I find no substance to the application.  The judge carefully considered all the matters raised in mitigation and arrived at a sentence that was appropriate in all the circumstances.  I refuse the application for leave to appeal against sentence.

21.The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.

Mr William Siu, SPP, of the Department of Justice, for the respondent

The applicant appeared in person