HKSAR v. Talwinder, Singh

HCMA 61/2020

[2020] HKCFI 1411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 61 OF 2020

(ON APPEAL FROM KCCC 2846/2019)

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J U D G M E N T

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1.The appellant was jointly charged with the first defendant (“D1”) with one count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200 (“the charge”).

2.The appellant and D1 were both represented by counsel assigned by the Duty Lawyer Service when their case was first mentioned on 30 November 2019.  The case was adjourned to 16 December 2019 for plea.  At the adjourned hearing however the appellant failed to appear and a warrant of arrest (“the warrant”) was issued against him.

3.On 31 December 2019, the appellant’s co-accused, D1 pleaded guilty to the charge and was sentenced to 8 months’ imprisonment.

4.On 5 January 2020 the appellant was arrested for another offence of possession of a dangerous drug and the warrant was executed.  As the appellant requested to have both cases to be heard together, he was brought up to court on an urgent and essential basis on 15 February 2020. 

5.On 15 February 2020 the appellant pleaded guilty before the Acting Principle Magistrate Ada Yim (“the magistrate”) to the charge and was sentenced to imprisonment for 9 months and 1 day.  He was unrepresented.

6.The appellant now appeals against the sentence.

Facts

7.PW1 and PW2 who were friends went drinking in a bar in Tsim Sha Tsui together on 28 November 2019.  In the early hours of the following day at around 1:15 am they left the bar together.  However, PW2 soon realised that he had left his phone behind.  PW1 went back to the bar to look for the phone as PW2 was too drunk to do so.  Meanwhile PW2 sat down somewhere outside No. 75 Chatham Road South (“the location’).

8.Upon PW1’s return to the location at around 1:30 am, PW1 saw the D1 and the appellant acting suspiciously near PW2 who was asleep.  PW1 thus reported the case to the police and used his mobile phone to video D1 and the appellant.  At the material time D1 sat next to PW2 and reached his hand into the jacket pocket of PW2, meanwhile the appellant acted as a lookout.  Subsequently police officers arrived and D1 and the appellant were arrested.  Under caution, both D1 and the appellant remained silent.

Mitigation

9.The appellant was 31 years old and from India. He is a Form 8 Holder and reliant on ISS.  He has 2 previous convictions, none of a similar nature.

Reasons for Sentence

10.The magistrate considered the appellant’s case similar in nature to the offence of pickpocketing.  The appellant and D1 took advantage of PW2’s drunkenness and attempted to steal from him. 

11.The magistrate noted a number of aggravating features. They were that the appellant was not of clear record, he committed the offence jointly with D1 and whilst awaiting the processing of his immigration claim. 

12.The magistrate was of the view that the tariff of pickpocketing was a starting point of between 12 to 15 months for a fresh offender.  She was of the view a starting point of 15 months was appropriate for the appellant.

13.The magistrate took into account that the appellant’s co-accused D1 was sentenced to 8 months’ imprisonment upon a guilty plea.  Thus in order to avoid any disparity in their sentence the magistrate adopted a similar starting point of 12 months’ imprisonment, despite the aggravating features. 

14.Finally, as the appellant absconded and was only brought before the court upon the execution of the warrant, the magistrate only allowed the appellant slightly less than 25% discount and thus the appellant was sentenced to 9 months and 1 day’s imprisonment.

Grounds of Appeal

15.In the appellant’s Form 102[1], the sole ground of appeal is that the sentence is too severe.  In his oral submissions, the appellant complained that he was not awarded the full one third discount on his guilty plea.  The gist of his submissions was that his co-accused (D1) had received the full one third discount whilst he had not despite his guilty plea.

Discussion

16.As to the term of imprisonment the magistrate was correct to consider the appellant’s case similar in nature to pickpocketing and thus correctly applied the guidelines set out in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, in which Ma CJHC (as he then was) held that for theft by pickpocketing, the guideline sentence of 12 to 15 months after trial is appropriate for a first time offender.  

17.In addition, despite the fact that the appellant acted as a lookout, his role was critical to the commission of the offence and thus there should be no distinction between his role and his co-accused. 

18.The magistrate was entitled given the aggravating factors to have taken a starting point greater than 12 months’ imprisonment. 

19.Although the magistrate considered a higher starting point for the appellant, the magistrate considered the principle of disparity and generously adopted a similar starting point to that of D1.  

20.The question arising on this appeal is if the magistrate was correct in not awarding the appellant the full one third discount on the starting point of 12 months’ imprisonment upon the appellant’s plea of guilty.

21.As demonstrated below, where a defendant has absconded the sentencing judge is entitled to not give the defendant a full discount on his plea of guilty. 

22.In HKSAR v Lo Kam Fai [2016] 2 HKLRD 308, the appellant (who committed burglary in 2009) absconded and did not attend his trial fixed to begin in February 2011.  He was rearrested almost 40 months later.  When the appellant appeared in court on 30 June and 29 July 2014, he indicated that he would only plead guilty to the charge of failing to surrender to custody without reasonable cause but not the burglary one.  Subsequently, the trial date was fixed and the appellant changed his mind and indicated through his counsel just 4 days before trial that he would plead guilty to all charges against him[2]^.

23.When sentencing the appellant, the judge determined that it was not appropriate to afford the appellant a one third discount for his guilty plea as he had “rendered the administration of justice more costly and time-consuming”. Thus, in the end, the judge only afforded the appellant a discount of 8 months’ imprisonment from the starting point of 3 years’ imprisonment (which was a discount of about 22% from the starting point)[3].

24.On appeal, it was argued that the appellant should be entitled to the one-third sentence discount for his guilty plea.  Hon Yeung VP agreed with the sentencing judge that the appellant “had hindered the course of justice and had made it more difficult and more costly for its administration.  He had wasted precious judicial resources and had caused inconvenience to the police and the victims who had the matter hanging over their heads for over years”.  Thus, Hon Yeung VP held that the sentencing judge was “entitled to give the appellant a discount which was less than one-third on his guilty plea”[4]^.

25.Hon Lunn VP (as he then was) in the same judgment also made the following remarks:

“The appropriate reduced discount to be afforded to a defendant where a plea of guilty is not timely will reflect the individual circumstances of the particular case. A range of factors may be relevant: the length of time that justice has been delayed; whether or not the defendant surrendered to the authorities ultimately or whether it was necessary for him to be re-arrested; the inconvenience and wasted expense and costs caused by the aborted scheduled hearing, to witnesses, counsel and the court. That is particularly the case, if witnesses have travelled to Hong Kong from overseas or remained in Hong Kong, where otherwise they would not have done so, in order to give evidence. There may be many other relevant factors.”[5] (Emphasis added)

26.Hon Macrae JA (as he then was) also remarked in the same judgment, after considering a line of cases, that

“if one were to divine some form of consistent thread in those cases where the defendant has been given a reduced discount for a late plea by virtue of his absconding, but not dealt with separately for a discrete offence of absconding, it would seem that a discount of about 25% has been the more favoured discount”[6]

and at paragraph 91 he went on to say

“so far as the reduction of discount for absconding, as the matter presently stands, it looks as though the normal range of discount should lie between 20% and 25% depending on the circumstances with most Hong Kong cases favouring around 25%”.

27.In HKSAR v Ko Chung Hung CACC71/2007 the applicant was charged with 2 theft (pickpocket) offences and one of failing to surrender to custody without reasonable cause.  In sentencing, the judge only gave the applicant 16.66% discount for the theft charges as the appellant had absconded.  On appeal Hon Yeung JA (as he then was) held that there was a valid reason for the discount and thus it did not justify the Court of Appeal’s interference. 

28.In sentencing the appellant the magistrate said[7]:-

“…But unlike D1, the defendant absconded and was only brought before the court upon execution of warrant. I did not consider the defendant entitled to the full one third discount as D1. …”

29.In the present case the appellant absconded and only when the warrant was executed was he brought before the court.  The magistrate was entitled to exercise her discretion and not give the appellant a one third discount but to give him a reduced discount.  

Conclusion

30.In all the circumstances, despite the guilty plea of the appellant the sentence far from being excessive was in fact quite moderate.  The magistrate did not take into account the aggravating factors and fairly sentenced the appellant to a similar starting point to the D1 to avoid any disparity in sentence. 

31.The magistrate in refusing to give the full one-third discount to the appellant because he had absconded was fully justified in doing so.  The discount of slightly less than 25% cannot be criticized. 

32.The appellant against sentence has no merit and is dismissed. 

Mr Dimitri AU-YEUNG, PP of the Department of Justice, for the respondent

The appellant appeared in person