HKSAR v. Baljit Singh

CACC 17/2018

[2020] HKCA 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 17 OF 2018

(ON APPEAL FROM DCCC NO 328 OF 2017)

_______________

_______________

Before: Hon Zervos JA and Anthea Pang J in Court

Dates of Hearing: 5 December 2019 and 31 July 2020

Date of Judgment: 14 August 2020

________________

J U D G M E N T

________________

Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.With leave of the Court granted on 20 November 2019,[1] the appellant appeals against his sentence. The sole ground of appeal is that the appellant should be afforded a discount from his otherwise proper sentence in respect of the assistance he had rendered to the authorities.

2.On 10 October 2017, the appellant pleaded guilty before Deputy District Judge Amy Chan (the judge) to one charge of conspiracy to make false instruments, contrary to sections 71, 159A and 159C of the Crimes Ordinance, Cap 200, and sections 2 and 6 of the Criminal Jurisdiction Ordinance, Cap 461, (Charge 1), and one charge of taking employment while being a person who remained in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, contrary to section 38AA(1)(a) and (2) of the Immigration Ordinance, Cap 115, (Charge 2). 

3.On 10 November 2017, the judge sentenced the appellant to a total of 31 months and 2 weeks’ imprisonment.

4.On 24 January 2018, the appellant filed a notice for leave to appeal against sentence out of time.  The appellant stated that the delay in filing his appeal was due to the fact that he was assisting the authorities in relation to the investigation of his case.  As a result of the assistance he had rendered, he claimed he was entitled to a reduction to his sentence.

5.On 16 May 2018, the appellant was granted bail pending his appeal by McWalters JA on the basis that he was likely to have served most of his sentence by the time his appeal was heard.  At that time, the appellant’s release from custody was 4 September 2018.  The respondent did not object to the application because the appellant had assisted the authorities and was likely to receive a reduction to his sentence.[2] 

6.Similarly, when leave was granted to the appellant to appeal against his sentence on 20 November 2019, the respondent did not oppose the application.  The respondent acknowledged that the appellant had given statements to the authorities which resulted in the arrest and prosecution of various persons and was therefore deserving of a further reduction to his sentence.[3]

The plea and summary of facts

7.On the first day of his trial, the appellant appeared before the judge and pleaded guilty to the two charges he faced.

8.The summary of facts outlined to the judge and admitted by the appellant briefly stated as follows.[4] 

9.On 30 November 2015, the appellant surrendered to the Immigration Department for illegally remaining in Hong Kong and was released on a recognizance issued by the Immigration Department on condition that he not take up any employment, whether paid or unpaid.

10.On 6 December 2016, the appellant was intercepted by Immigration officers, having been observed working in a Japanese restaurant in Kowloon.  A mobile telephone was seized from him which was examined. It contained various images of forged Hong Kong identity cards.

11.The appellant was questioned by Immigration officers about his employment and the images found on his telephone.  He gave six cautioned statements, in which he admitted his involvement in the offences for which he was later charged.  He acknowledged that the identity cards depicted in the images on his telephone were forged and the photograph of the person on these images belonged to the buyer of the identity card, rather than the actual owner of it.  He revealed that the person behind the scam was “Gulnaz Akhtar”, also known as “Rani”, who recruited him in October 2016. Gulnaz Akhtar would send to the appellant on his telephone the photographs and personal particulars of non-refoulement claimants who wanted forged identity cards.  The appellant would then pass the information to “Gursharn Singh”, also known as “Pannu”, who in turn would pass it to “Darshan Singh” to make the forged identity cards.  The identity cards would be made in mainland China, and when completed, Gursharn Singh would contact the appellant to collect them.  He would in turn pass them to Gulnaz Akhtar, who would sell them to non-refoulement claimants at a cost of about $4,500 each.  The non-refoulement claimants would use the forged identity card to secure employment in Hong Kong.

12.The appellant admitted that he performed this task on about four occasions from October to November 2016 and in return it was arranged for him to work at the Japanese restaurant, earning around $1,500 per month.  He also admitted that he knew he was not allowed to work in Hong Kong but had commenced working in the restaurant since around July 2016.

The appellant’s mitigation

13.Ms Mahinder Panesar, counsel for the appellant, presented lengthy mitigation on his behalf.[5] She described the appellant’s background in some detail and explained that he came from India where he lived in a village with his infirmed parents and a younger brother.  The family had sold their possessions to amass enough money to pay human traffickers for the appellant to enter Hong Kong illegally.  Upon entering Hong Kong, the traffickers arranged for the appellant to apply for asylum and obtain welfare benefits.  They also provided him with employment at the restaurant to pay off the monies he owed them for bringing him into Hong Kong illegally.

14.Ms Panesar submitted that the appellant had been threatened that if he assisted the authorities in any way he and his family would be harmed, as it was common knowledge that he had made statements disclosing his role in the offences.  She indicated that notwithstanding these threats, the appellant was willing to assist the authorities should they wish to interview him and take a statement from him.

15.There was also an exchange between Ms Panesar and the judge about the relevant sentencing guidelines and likely sentence to be imposed for these offences.

16.The proceedings were adjourned to 10 November 2017 so as to enable the appellant to give the assistance that he had offered to provide.  At the resumed hearing, it was confirmed that he had made a non-prejudicial statement which led to the arrest of his two co-conspirators.  He also expressed his willingness to be a witness at any future trial of them. Consequently, the judge decided to leave the matter of any reduction for the assistance he had rendered to the authorities after he had fulfilled his promise, and proceeded to sentence him.  She explained that depending upon the outcome of the assistance, he could seek a reduction of his sentence on appeal.

The sentence

17.The judge, having reviewed the facts of the case and the background of the appellant, commented that the offences had a serious detrimental effect on the community and tarnished Hong Kong’s reputation for order and security.[6] She said that making forged Hong Kong identity cards damaged the integrity of the identity card system and allowed persons to use them for illegal purposes, such as taking up unlawful employment.  She noted that this would deprive job opportunities to members of the community and adversely affect the economic structure and social order of Hong Kong.  She finally noted that this was a syndicated crime with the appellant performing the role of a courier.

18.The judge adopted a starting point of 3 years and 6 months’ imprisonment on Charge 1, which she enhanced by 3 months for the fact that the appellant was a Form 8 recognizance holder at the time of the offence, but this was offset by a reduction of 3 months for the lesser role the appellant played in the criminal enterprise.  She then reduced the sentence by 25% for the appellant’s guilty plea on the first day of trial to 31 months and 2 weeks’ imprisonment.  As for Charge 2, she noted that the appellant had pleaded guilty to the offence on plea day and sentenced him to 15 months’ imprisonment in accordance with the tariff laid down in HKSAR v Usman Butt and Ors [2010] 5 HKLRD 452.  Taking into account the totality principle, she ordered that the sentences of the two charges be served concurrently.  This resulted in a total sentence of 31 months and 2 weeks’ imprisonment.

The assistance rendered to the authorities

19.The assistance the appellant had rendered to the authorities consisted of making a number of statements, in which he detailed the involvement of others in this criminal enterprise. It resulted in the arrest and prosecution of various persons, and involved the appellant giving evidence in two sets of criminal proceedings.  

20.The respondent had initially acknowledged the assistance the appellant had rendered in those proceedings and accepted he was deserving of a further reduction to his sentence.[7] But as more information came to light, the respondent’s view changed as to the quality of the assistance the appellant had provided.

21.In accordance with the procedures and requirements as laid out in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516, Immigration officers confirmed in statements to the Court that the appellant had provided six non-prejudicial statements, setting out the involvement of various persons in the offences to which he had pleaded guilty. 

22.We were informed that the information the appellant had provided led to the following enforcement action:[8]

(1) The arrest and prosecution of Ms Cheung Wai Ying for employing a person not lawfully employable.  She was a director of the company owning the Japanese restaurant in which the appellant was employed.  On 31 December 2018, the charge against her was withdrawn on condition that the company, Toyo Enterprises Limited, plead guilty to the offence.  The company was accordingly fined $8,000. (STS 7846/2018)

(2) The arrest and prosecution of Ms Gulnaz Akhtar (Gulnaz) and Mr Parminder Singh (Singh) for the offence of aiding and abetting the appellant to take up unapproved employment while remaining in Hong Kong unlawfully, and with the additional offence against Singh of aiding and abetting the appellant to remain in Hong Kong unlawfully.  (STCC 3976/2018)  This case was heard in the Magistrate’s Court over three days, commencing on 24 April 2019. The appellant gave evidence as the only prosecution witness.  At the conclusion of the trial, both Gulnaz and Singh were convicted, except Singh was acquitted of the additional offence he faced.  Gulnaz was sentenced to 18½ months’ imprisonment, while Singh was sentenced to 22½ months’ imprisonment.  Subsequently, both Gulnaz and Singh successfully appealed against their conviction and sentence. 

(3) The arrest and prosecution of Gulnaz for conspiracy to make false instruments in the District Court.  (DCCC 18/2019) On 7 August 2019, the appellant gave evidence at the trial but claimed that Gulnaz was not involved in the case and this resulted in the judge ruling that Gulnaz had no case to answer.  However, after the trial on 8 August 2019, the appellant made a report to the police, claiming that he had been threatened by three men before he entered the District Court, who told him not to give evidence in the case, or else they would kill his brother in India.  The alleged threat to the appellant became the subject of an investigation. 

The outcome of the assistance

23.This appeal was adjourned on 5 December 2019, so that we would have the benefit of the result of the appeal by Gulnaz and Singh against their conviction and sentence in STCC 3976/2018, and the outcome of the investigation of the alleged threat to the appellant not to give evidence in the case of DCCC 18/2019.[9]

24.As already noted, the appellant was the sole witness against the two defendants in the Magistrate Court case.  The appeal was heard by Toh J who allowed the appeal primarily on the basis of comparing the evidence of the appellant in the Magistrate Court case with his evidence in the District Court case.  She explained that she considered the District Court evidence on the authority of HKSAR v Rai Rushal, unrep., CACC 118/2013, 29 August 2014, where it was held that in appropriate circumstances, evidence that emerges subsequent to trial that is relevant to the credibility of witnesses called for the prosecution at trial may be considered by an appellate court in its consideration of the safety of the conviction of the applicant.[10]  She concluded that had the magistrate read the transcript of the appellant’s evidence in the District Court case she would have had doubts about the reliability of his evidence.  She was therefore satisfied that his reliability as a witness was questionable. 

25.It would appear that a transcript of the appellant’s evidence in the District Court case was before the judge pursuant to a notice of motion to adduce fresh evidence on appeal.[11]  No attempt was made by the respondent to adduce fresh evidence in response, other than noting in submission to the judge the appellant’s complaint that he had been threatened not to give evidence in those proceedings. 

26.Mr Pierre Lui, for the respondent, has filed a notice of motion, seeking to adduce additional evidence before us pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221.  The proposed evidence consists of three statements. 

27.The first statement dated 30 September 2019 is from the Immigration officer, who was in charge of the appellant’s case.  He sets out detailed particulars about the three cases in which the appellant had rendered assistance, including his failure to come up to proof in the District Court case, which resulted in Gulnaz being acquitted of the charge that she faced. 

28.The second statement dated 14 October 2019 is from an Assistant Principal Immigration officer.  He too provides an overview of the assistance the appellant had rendered in relation to the three cases and the outcome of that assistance. 

29.The third statement dated 14 March 2020 is from the police officer, who was in charge of the investigation into the appellant’s complaint that he been threatened not to give evidence in the District Court case.  Having described the account of the facts from the appellant as “incredible and incoherent”, he concludes that the investigation into the case had exhausted all lines of enquiry and could not establish an offence against any person.[12]

30.The officer explains that the appellant reported the matter at 1:30 am on 8 August 2019.  The appellant made a statement in which he claimed that before he entered the District Court, at about 9 am on 7 August 2019, three unknown men approached him and said “Do not give evidence in the court for the case, or else we would kill your brother in India.”  The appellant said that the three men then left.  He said that he was so afraid that when giving evidence he did not say anything incriminating about the defendant because he been threatened by the three men.  He said that he did not give evidence in court anymore because he was worried about the safety of his family in India. The officer notes that the CCTV cameras covering the entrance of the court building did not capture any such incident, apparently because the incident occurred at a blind spot of the CCTV cameras. 

31.The officer further notes that the appellant made a second statement on 18 December 2019.  This was after we had adjourned the appeal on 5 December 2019 for further information about the assistance the appellant had rendered to the authorities. 

32.In his second statement, the appellant claimed that on 7 August 2019, after attending the District Court, at about 7 pm, he took the MTR with a friend to meet another friend.  When he was outside the Kwai Hing MTR Station, he saw a Pakistani male whom he recognised as the brother of Gulnaz.  He said that he was one of the men who had threatened him outside the District Court on that day.  He said when he saw him he was afraid that he would continue to harass his family in India, but notwithstanding his fear he did not call the police.  He stayed in the locality for a while and at about 8:30 pm about 10 to 15 Pakistani and Indian males appeared and charged towards him.  The person he claimed was the brother of Gulnaz said to him “You have guts to be a witness at the court, now you show me how to be a witness.  We have had to spend $200,000 because of you.”  He said that this person hit him on the back of his neck, after which he immediately fled being chased by him and two other Pakistani males.  He said that he eventually hailed a taxi and got away.  He contacted his social worker for assistance who suggested to make a report to the police.  He said when he made the previous police report, the social worker did not interpret the second incident.  He claimed that even though he had signed the first statement it was already late at night, and as it was provided in the statement that he could correct, alter or add anything if he wished, he thought the police would make further enquiries of him about the matter.  The officer notes that there was no CCTV coverage at the location of the alleged assault. 

33.The officer finally notes that the appellant made a third statement on 25 February 2020.  The appellant stated that he was uncertain as to the relationship of the person he identified as the “brother” of Gulnaz and that he saw one of the other men who chased and hit him in early January 2020, unloading goods from a truck.  He did not call the police because he feared that this man would attack him.

The resentencing of the appellant

34.No issue has been taken by the appellant as to the judge’s approach in sentencing him.  It falls on this Court therefore to resentence the appellant in light of the purported assistance he has rendered to the authorities.

35.The information he provided led to the prosecution of various parties in three cases.  The first was relatively minor, involving unlawful employment of the appellant by a company which pleaded guilty.  The second was more serious, involving two defendants, Gulnaz and Singh, who assisted the appellant in taking up unlawful employment, and against whom the appellant gave evidence, resulting in their conviction and sentence to terms of imprisonment.  Both defendants successfully appealed their convictions.  The third was a very serious case against Gulnaz of forging Hong Kong identity cards in order for non-refoulement claimants to take up unlawful employment.  The appellant did not come up to proof, later claiming he had been threatened.  Gulnaz was acquitted as a result.  He had previously given evidence against her in the second case.  There are definite consequences that flow from his conduct in these proceedings.

The relevant sentencing principles

36.Before we turn to consider the assistance rendered by the appellant and make an evaluative assessment of it for the purpose of any reduction to his sentence, it is necessary to summarise the relevant principles.

37.The sentencing principles in relation to assistance to the authorities has been extensively canvassed and explained by the Court of Final Appeal in Z v HKSAR (2007) 10 HKCFAR 183, as well as various decisions of the Court of Appeal, focusing on specific aspects of these principles and the application of them.

38.The underlying rationale of the court’s approach in sentencing a defendant who has rendered useful assistance to the authorities is to recognise it in mitigation and afford him an appropriate discount to his sentence as a form of encouragement to inform on others in order to prevent, detect and prosecute crime.  It therefore serves an important aspect of the public interest.  The discount to be afforded to a defendant in such circumstances will be measured by whether the assistance has been “of practical use”, but as the Court of Final Appeal explained in deciding whether such assistance merits a discount in a particular case, this will depend on a number of factors, the most important of which usually include:

“(a) The nature and extent of the assistance. In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclose; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.

(b) The likely consequences of the defendant giving assistance such as threats to his safety, more burdensome conditions of his imprisonment as he may have to be placed in protective custody, and danger to himself and his family after his release from prison.”[13]

39.The Court of Final Appeal acknowledged that the Court of Appeal was more appropriately placed to consider the range of reductions of sentence for cooperation with the authorities.  Having noted that the Court of Appeal used various percentages of discount for different degrees of assistance, the Court went on to state:

“23. … It has applied a usual discount of 40% (including the one-third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at p.340. (Compare its earlier decision in HKSAR v Ng Shek Yu (unrep., CACC No 178 of 2000, [2001] HKEC 243) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.) Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty). HKSAR v Lee Yat Fan (unrep., CACC No 414 of 1999, [2001] HKEC 662). …”

40.The 40% to 50% discount range was further discussed by McWalters JA in HKSAR v Lo Sze Tung Stephanie (unrep., CACC 190/2017, 25 July 2018), at [53]-[64], although he focused on the case of a defendant who has offered to testify for the prosecution but whose offer had not been taken up because of some intervening event beyond the defendant’s control.

41.From these principles, two matters relevant to the present case need to be noted.  First, the usual 50% discount is available where the appellant has not only given information but had proceeded to give “truthful and material evidence”.  Secondly, such discount incorporates a one third reduction for pleading guilty.  Hence, the usual reduction in such circumstances is 50% less 33.33%, which is up to 16.67%.

The new sentence

42.It follows from what we have said that whilst the appellant has purportedly provided assistance, it has been seriously undermined by his conduct in respect of the District Court case.  We have to make an overall assessment of his assistance and take into account any factors that will neutralize or negative the assistance he has provided.

43.As we have mentioned, no issue has been taken with the sentence imposed by the judge for the two offences.  Although, we point out that the discount of 25% for a plea of guilty on the first day of trial and the concurrent sentences for the two offences may be viewed as being very generous in the circumstances.

44.In respect of Charge 1, the judge adopted a starting point of 42 months’ imprisonment which followed the guidance for this type of offence in HKSAR v Chan Yip Chu [2006] 2 HKLRD 181.  The judge enhanced the starting point by 3 months to 45 months’ imprisonment due to the appellant’s immigration status, and the effect of his criminal conduct: HKSAR v Sandagdorj Altankhuyag and Anor [2014] 1 HKC 206.  The judge then reduced the nominal sentence by 3 months because of the role and personal circumstances of the appellant.

45.In accordance with HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the judge reduced the sentence by 25% because the appellant only pleaded guilty to Charge 1 on the first day of trial.

46.When making an evaluative assessment of the defendant’s cooperation with the authorities, it is necessary to look at the matter in the round so that all relevant factors are taken into proper consideration.  Where the assistance relates to more than one case, it is not necessarily limited to a separate assessment of the assistance in each case because it may be relevant to consider what impact, if any, the outcome of the assistance in one case may have or has had in another case, particularly when the outcome of the assistance reflects adversely on the defendant.

47.With all that has transpired, we have received further submissions from counsel.

48.Mr Bullett has had to address us on explaining the appellant’s conduct in giving false evidence in the District Court case which has had deleterious consequences to the Magistrate Court case, and how the appellant’s assistance when fully considered has been “of practical use”.

49.Mr Bullett submits that the appellant should be accorded a discount of 16.7% for the evidence he gave against each of the defendants in the Magistrate Court case and an additional discount of 11.7% to 16.7% for his assistance leading to the plea and fine of Toyo Enterprises.  In an extraordinary form of reasoning, he submits that as the appellant has already spent 17.3 months in custody, which after the usual one third remission for good conduct is the equivalent of a sentence of 25.95 months, a total discount for the three matters of assistance of about 38.3% (about 13.3% plus the 25% for his plea) of the starting point of 42 months would mean that he had already served his full sentence.  He contends that a discount of this amount would be justified by any one of the three matters of assistance.  It is not quite clear what he means by the three matters of assistance, unless he is referring to the fact that the appellant gave evidence against two defendants in the Magistrate Court case. 

50.We have no hesitation in rejecting this submission.  It is simply contrary to logical analysis and sentencing authority.

51.Mr Bullett relies on the appellant’s assistance in relation to the cases involving the appellant’s unlawful employment at the Japanese restaurant, which resulted in the company owning the restaurant being fined, and the Magistrate Court case against Gulnaz and Singh, who were convicted of aiding and abetting the appellant to take up unlawful employment. He submits that in respect of the District Court case, the appellant, whilst not entitled to any discount to his sentence, should not be penalised for failing to come up to proof.  He further submits that even though the Magistrate Court case was overturned on appeal, the appellant should receive the same credit as someone whose evidence for the prosecution is believed, which would entitle him to a discount of 45% to 50% to his sentence. 

52.Mr Bullett refers to two cases in support of his submissions.  The first case is HKSAR v Chan Sau Hing and Anor, unrep., CACC 211/2001, 13 November 2002, at [30], where the applicant, having pleaded guilty, gave evidence against his co-defendants, but was refused a discount to his sentence.  The Court of Appeal held that the applicant was entitled to a discount for having given evidence unless it could be demonstrated clearly that a certain aspect of his evidence was totally different from what was contained in his witness statement.  The second case is HKSAR v Chung Chi Kuen, unrep., CACC 337/2013, 24 September 2014, at [8]-[10], which also involved the applicant, having pleaded guilty giving evidence for the prosecution, but where the outcome of the trial was an acquittal of the co-defendant.  There was a question as to the quality of the applicant’s evidence but the Court of Appeal held that he was entitled to a discount to his sentence because there was no suggestion that he departed from his witness statement.

53.Mr Lui, in response, submits that whilst the appellant is entitled to a reduction of sentence in recognition of his assistance to the authorities, the reduction should be confined to an additional discount of about 6.67% of the starting point.  His submission is primarily based on the appellant’s unacceptable conduct in the District Court case in giving false evidence and the impact that has had on the Magistrate Court case on appeal, as well as on the outcome of the investigation into the appellant’s allegations of having been threatened and assaulted in relation to the District Court case.  He relies very much on the view expressed by the officer in charge of the investigation into the alleged threats to the appellant that the appellant’s account of the facts was “incredible and incoherent”. 

54.Mr Lui submits that the appellant’s allegations are questionable and makes the following points. 

55.First, Mr Lui asks rhetorically that if the alleged threat by the three unknown men occurred at about 9 am outside the District Court, why did it take the appellant until 1:30 am the next day to report the matter to the police.  He could have informed the trial judge or the authorities, or simply declined to give evidence, instead of giving false evidence.  It is asserted by Mr Bullett that the appellant at the time of the threat was given a telephone by his assailants to speak to his brother in India who told him he had been held by a group of men.  He submitted that after his brother was released, the appellant then reported the matter to the police.  We note that no mention of this was made in any statement by the appellant to the police. 

56.Secondly, Mr Lui points out that rather surprisingly the CCTV cameras in the surrounding area of the entrance of the District Court did not capture the incident as alleged. 

57.Thirdly, Mr Lui notes that, on 18 December 2019, the appellant provided a second statement to the police in which he claimed one of the three men who threatened him was actually known to him as the brother of Gulnaz.  He had previously made a statement that the three men were unknown to him.  He later made another statement in which he said that the man was not the brother of Gulnaz. 

58.Fourthly, Mr Lui notes that the appellant alleged that he was assaulted by these men and others in Kwai Hing on the evening of 7 August 2019 but it was only mentioned in his second statement on 18 December 2019, which came shortly after his appeal was part heard on 5 December 2019.

59.Fifthly, Mr Lui questions that if Gulnaz was responsible for the three men threatening him not to give evidence in the District Court case, which only involved Gulnaz, why did it not happen in the earlier case in the Magistrate’s Court, in which the appellant testified against Gulnaz and Singh.

60.Mr Lui acknowledges that the appellant’s evidence in the Magistrate Court case was consistent with his witness statement, and except for some minor inconsistencies, the magistrate accepted his evidence and convicted Gulnaz and Singh.  However, he submits that the events subsequent to these convictions cannot be ignored.  First, the appellant gave completely contradictory evidence to his witness statement in the District Court case, which was false.  Secondly, the judge in the magistracy appeal of the Magistrate Court case found that the appellant was “not only inconsistent but that he was saying whatever came to his head”.  She also found, taking into account the transcript of his evidence in the District Court case, that the appellant’s “reliability is questionable”.  Thirdly, the appellant’s explanation that he failed to come up to proof in the District Court case because he was threatened was not only incoherent, but wholly unbelievable.

61.Mr Lui has referred us that to R v P [2008] 2 Cr App R (S) 5 (16), in which the Court of Appeal of England and Wales provided guidance on sentencing, where an offender has entered into a written agreement with the prosecution to provide assistance in accordance with the provisions under the Serious Organised Crime and Police Act, 2005 (SOCPA). Whilst we do not have the statutory scheme as provided under the SOCPA in this jurisdiction, assistance can be derived from the statement of principles relevant to an offender who has agreed to assist the authorities.  The Court held that where a defendant has failed or refused to provide assistance as promised, the sentencing court should review the matter bearing in mind:

“30. … Non-compliance is not a separate crime, nor indeed an aggravating feature of the original offence; the penalty is that the defendant will be deprived of the reduction of sentence which would have been allowed if he had complied with the agreement. Instead he will normally serve the appropriate sentence for his criminality in full.”

62.The courts must guard against the dishonest manipulation of the sentencing process by a defendant.  In our view, if an offender reneges on the promise of assistance or undermines the assistance rendered, these are matters that can properly be taken into account when determining the final sentence to be passed on the offender.  Where this has occurred in rendering assistance to the authorities, further action may be taken against a defendant depending upon the circumstances of the case, but the end result in respect of his sentence will mean that he will lose any reduction he would otherwise have received if he kept his promise and assisted the authorities.

63.Mr Lui is right to submit the following matters when assessing the practical use of the appellant’s assistance: (i) the nature and extent of the assistance rendered by the appellant as evidenced by the disclosure of the involvement of persons in his unlawful employment and the making of false Hong Kong identity cards; (ii) the truth and reliability of the appellant which has been severely damaged by giving false evidence, and the inconsistent and incoherent factual accounts he has given in relation to the alleged threats against him; (iii) the level and seriousness of the criminal activities disclosed by the appellant, which ranged from the less serious of unlawful employment to the more serious of making false Hong Kong identity cards; and (iv) the consequences of giving assistance, which was severely undermined by his conduct, resulted in wasted public resources in respect of the more serious matters. 

64.Mr Lui further submits that the threat of violence to the appellant and his brother has not been substantiated, nor has his co-operation with the authorities exposed himself and his family to a realistic risk of harm.  He finally submits that when all these matters are taken into account the appellant should receive 6.67% (40% less 33.33% guilty plea) additional discount from the starting point of 42 months, which would reduce his sentence from 31.5 months’ imprisonment to 28.7 months’ imprisonment.

65.There is also the issue of the appellant having been on bail pending his appeal for over 2 years.  In such circumstances, it would seem harsh to return a convicted person back to prison to serve out a relatively short period of a remaining term of imprisonment.  However, the sole basis on which he was granted bail without objection from the respondent was due to the fact that he had assisted the authorities and was deserving of a reduction to his sentence.  By his subsequent conduct, the appellant has served to substantially undermine any “practical use” of the assistance that he had rendered.  It is acknowledged that he provided information of the involvement of persons in criminal activities but his conduct has severely prevented the possibility of any enforcement action being taken against them.  Except for the company that unlawfully employed him at the restaurant, the two persons he alleged were involved in criminal activities have now been acquitted as a direct result of his conduct.  The applicant on his own admission gave false evidence in the District Court case.  It was reprehensible conduct which struck at the heart of the integrity of the process by which discounts on sentencing are given for assistance.  An obligation to give truthful evidence is a matter of paramount importance to the administration of justice and where a promise by a person to assist the authorities by giving truthful evidence is deliberately undermined by him, he can expect that serious consequences will flow from such conduct.  We find that his justification for giving false evidence in the District Court case totally unacceptable, and his allegation that he been a victim of threats on two occasions were unsubstantiated and highly questionable. 

66.We have reviewed and considered the history of this case and related matters and have come to the conclusion that the appellant has been less than forthcoming and honest in his dealings with the authorities.  What assistance he has given that remains intact, and has been “of practical use”, is limited to the relatively minor case of his unlawful employment by the company.  We are therefore of the view that he should only receive a further 5% discount of his sentence for the assistance that he has rendered to the authorities.  He is deserving of no other credit.

Conclusion

67.To the extent that we have explained in our reasons, we allow the appeal.  We adopt the judge’s approach in sentencing the appellant, except we grant him a further 5% discount on the 25% discount for his guilty plea.  This will result in a 30% discount on the notional starting point of 42 months’ imprisonment to 29 months’ imprisonment on Charge 1.  The sentence on Charge 2 of 15 months’ imprisonment will remain and be served concurrently with the sentence on Charge 1.  The end result is that the appellant is sentenced to a total of 29 months’ imprisonment.

68.We were informed that when the appellant was apprehended by Immigration officers in relation to this case he was placed in Immigration detention from 6 to 13 December 2016.  We note that this period of detention should be taken into account in the computation of his sentence in this case as we are satisfied that the dual requirements under section 67A of the Criminal Procedure Ordinance, Cap 221, have been met.  See HKSAR v Eftakhar Beg, unrep., HCMA 262/2015, 6 July 2015.

Mr Pierre Lui, SPP, of the Department of Justice, for the respondent

Mr Andrew Bullett, instructed by Mohnani & Associates, assigned by the Director of Legal Aid, for the appellant