HKSAR v. Chan Kim Hung

CACC 323/2018

[2019] HKCA 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 323 OF 2018

(ON APPEAL FROM HCCC NO 20 OF 1995)

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J U D G M E N T

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1.This is an application by the applicant for leave to appeal against his sentence out of time.

2.On 31 July 2018, the applicant was sentenced to a total term of 8 years’ imprisonment following his plea of guilty to offences of robbery, false imprisonment and rape. 

3.The offences took place in September 1994 and involved the applicant together with another person luring the victim, who was a sex worker, to a room where she was forcibly detained.  The victim was robbed by both of them and raped by the applicant.  They were subsequently arrested and put on trial for these offences.  However, prior to trial in May 1995, the applicant absconded and eventually took up residence in Myanmar.  It is said that he joined a Christian order and helped others in the region where he lived.  In 2017, he surrendered himself to the Thai authorities to account for these offences and returned to Hong Kong.

4.The applicant filed on 5 November 2018 a notice to appeal his sentence out of time and by his subsequent perfected grounds of appeal complains that (1) in respect of the robbery offence the judge erred (i) in failing to take into account the sentence imposed on the applicant’s co-defendant, and (ii) in making a proper assessment of the facts of the case and the role played by each of the defendants, which resulted in an unfair disparity in the sentence imposed on the applicant when compared with the sentence imposed on his co-defendant (who received 5 years’ imprisonment for the robbery offence after trial); (2) in respect of the rape offence the judge erred in placing undue emphasis on the period of detention of the victim which was dealt with by the false imprisonment offence and resulted in a sentence that was manifestly excessive; (3) the judge failed to consider or to adequately consider the assistance rendered by the applicant to the authorities and inappropriately offset any reduction to the applicant’s sentence for such assistance for having absconded prior to trial; and (4) the judge failed to take into account in the computation of the applicant’s sentence the period he was detained in custody in Thailand upon his surrender to the Thai authorities.

5.In his affirmation filed together with his notice of appeal, the applicant states that it was not until a particular case came to his attention that he questioned the fairness of the sentence that was imposed on him and that he wanted to discuss the case with a lawyer as he felt the sentence was “too heavy”.  He was subsequently granted legal aid in relation to his appeal against sentence out of time. 

6.The judge determined the sentence by calculating a global starting point in relation to the three offences of 12 years’ imprisonment which he reduced by one third for the applicant’s guilty plea to 8 years’ imprisonment.  He adopted a starting point of 5½ years in relation to the robbery offence, 2 years in relation to the false imprisonment offence, and 7 years in relation to the rape offence.  He made the starting points for the robbery and false imprisonment offences concurrent and then made 6 months of the rape offence concurrent with the concurrent sentences for the robbery and false imprisonment offences.  The approach he should have taken was to determine a sentence in relation to each offence.  Had the judge done so on the basis of the starting points that he adopted and the one third discount that he gave for the applicant’s guilty plea, the sentence on the robbery offence would have been 3 years and 8 months’ imprisonment, on the false imprisonment offence 1 year and 4 months’ imprisonment and on the rape offence 4 years and 8 months’ imprisonment.  The total sentence of 9 years and 8 months’ imprisonment would then be subject to the totality principle.

7.This was a complicated sentencing case due to the fact that it concerned an aggregate of serious offences that took place a long time ago and an applicant who had absconded some 24 years ago and voluntarily surrendered himself to a foreign authority in relation to this case.  There seems to be reasonably arguable grounds in relation to the approach the judge took in sentencing the applicant, particularly on the question of the assistance he rendered to the police by identifying his co-defendant, and his voluntary surrender to the authorities and the period of detention of 8 months in Thailand pending his return to Hong Kong (which was not disputed by the prosecution).  However, I should point out that the offences are very serious with a number of aggravating features that may on a reappraisal of the sentences lead to an overall higher sentence.  In considering sentencing afresh there are issues as to the appropriate starting points for the offences as well as the entitlement to a one third discount having absconded prior to trial.

8.In light of the foregoing, the applicant is granted an extension of time to file a notice to apply for leave to appeal against sentence and leave is granted to appeal against sentence.

Mr Derek Lau, SPP, of the Department of Justice, for the respondent

Mr Jeremy Cheung, instructed by Lau Pau & Co, assigned by the Director of Legal Aid, for the applicant