HKSAR v. Chang Yau Hung, Alexander

CACC 98 /2022, [2023] HKCA 757

On Appeal From [2022] HKCFI 1860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2022

(ON APPEAL FROM HCCC NO 350 OF 2020)

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J U D G M E N T

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1.Having read the parties’ respective submissions and listened to further oral argument this morning, I have decided to grant leave to appeal on both grounds of appeal put forward by the applicant. It seems to me that the sentence potentially engages four issues, which may need to be addressed in argument, some of which are unusual illustrations of the principles to which they relate. The four issues concern:

(a)  The appropriateness of adopting the maximum sentence under section 9 of the Theft Ordinance, Cap 210 as the starting point for the offence in all the circumstances;

(b)  The correctness of the 3-month discount given for the applicant’s accepted assistance to the authorities.  The peculiar permutation of the principle in this case is that the assistance came before the offence with which the Court is concerned was committed and related to another jurisdiction.  It is on this issue of assistance that Ground 2 is also said to derive its basis;

(c)  The applicability of the discount guidelines in HKSAR v Ngo Van Nam^[1], which was decided on 2 September 2016, to an offence which took place in October 2014; and

(d)  The absence of any specific discount for the applicant’s clear record and good character, given, in particular, his advanced age of 70 at the time of sentence.

2.I am not suggesting that any of these issues, individually or cumulatively, will necessarily result in the allowing of the appeal against sentence, the overall appropriateness of which will be looked at by the Court rather than the route by which it was reached.  However, they are matters that are reasonably arguable as having an impact on the overall sentence.

3.In those circumstances, I grant the applicant leave to appeal against sentence.

Ms Sabra Lo SPP, of the Department of Justice, for the Respondent

Mr Franco Kuan and Mr Schweitzer Wong, instructed by Morley Chow Seto, for the Applicant

[1] HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.