HKSAR v. Hui Wai Ping

CACC000263/2003

CACC 263/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 263 OF 2003

(ON APPEAL FROM DCCC 11 OF 2003)

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Coram: Hon Stuart-Moore V-P and Stock JA in Court

Date of Hearing: 11 March 2004

Date of Judgment: 11 March 2004

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.This application for leave to appeal against sentence is based on the fact that the judge failed to give a full one-third discount for the applicant's plea of guilty.

2.The applicant was arrested in May 2002 and then charged with an offence of conspiracy to defraud. The conspiracy was one with which the courts have become familiar, a Loco London gold and silver fraud by which members of the public are defrauded of savings by a pretence that the company which employs them is legitimately engaged in gold and silver trading.

3.On Monday 9 June 2003, that is more than one year after the applicant's arrest, she pleaded guilty before HH Judge Whaley in the District Court. She was sentenced two days later. The first intimation that there was to be a plea of guilty came on the Thursday before and was given to the prosecutors and to the court the following day, on Friday, 6 June.

4.The applicant was aged 44 years at the time of the offence with no previous convictions, and with a history of some serious illness. She played the role of a manager in the company, a role essential to the perpetration of the fraud and she also trained victims and actively persuaded them to open accounts and assisted them to prepare documentation. In respect of the witnesses who were to be called a total loss of $451,500 was shown.

5.The judge took a starting point of four years' imprisonment; a starting point which is not the subject of any complaint in this application. He then said this:

"22. The defendant is, of course, entitled to a discount for her plea of guilty and co-operation with the authorities. However, it is important to keep in mind that the one-third discount which is traditionally given is given for a plea of guilty at the earliest reasonable opportunity, on the basis that such an early plea of guilty saves a considerable amount of police time in not having to investigate and prepare the case for trial, and also the saving of court time.

23. The defendant was arrested on 24 May last year. Right up until a few days ago, she maintained her intention to plead not guilty. It was only on 5 June, the day before this trial was scheduled to begin, that her solicitors wrote to inform the court that she intended to change her plea to guilty. By that stage, of course, the case had been fully prepared for trial, so her guilty plea was too late to result in any savings in that respect.

24. In these circumstances, in my view she is not entitled to the full one-third discount which a plea at the earliest opportunity would have entitled her to, and it would be fair to afford her a 25 per cent discount. This results in a discount of 1 year from the starting point of 4 years, namely, a sentence of 3 years' imprisonment." (Emphasis added).

Complaint upon this application is restricted to the failure to give a full one-third discount for the plea.

6.The first point taken is that the judge erred in saying that 5 June was only one day before the trial was scheduled to begin. The trial was due to begin on Monday, 9 June 2003. In fact it was on 5 June, the previous Wednesday, that the applicant's solicitors wrote to prosecuting counsel of the applicant's intention to plead guilty. We do not think much turns on this particular point. But we do see that the judge seems to have been under the impression that the full one-third discount for the plea of guilty is available only where the plea is offered at the "earliest reasonable opportunity". That is an intimation made twice in the course of the passages which we have recited; and repeated in discussion with counsel before sentence, for there the judge said at page 23 of the transcript:

"...the one-third discount is given, it should not be lost sight of, for pleading guilty at the first reasonable opportunity, of course."

7.To the extent that the judge was limiting a full one-third discount to pleas offered at the first reasonable opportunity he erred in principle. The approach is well established: see HKSAR v Li Tak Yin, Criminal Appeal 395 of 2002, 6 February 2003 (unreported) where this Court, slightly differently constituted, said:

"14. ... In this particular case, the judge emphasised the fact that the plea was not entered at "the earliest opportunity". We accept that there have been cases in the past in which that phrase has been used, but of late the courts have rather been using the phrase "a timely plea" and the judge's approach is one which might suggest that it is exceptional rather than normal to deduct one-third if the plea of guilty is offered on the first day of trial. We emphasise that the one-third discount is not a rigid rule, for there are instances where a lesser discount will be, and as the cases show have been, warranted, and there are many examples provided by the cases. But there should, in our judgment, be some sound reason or circumstance, over and above the mere fact that the plea is only tendered on the first day of trial. We do not see that such sound reason existed in this case."

So the judge appears to have erred in principle to the extent indicated. Nonetheless, that is not necessarily the end of the matter because there are particular circumstances in which a judge may be justified in not giving the full one-third discount where a plea is offered at or near the commencement of the trial. The type of particular circumstances which may warrant a departure from the normal approach was referred to in HKSAR v Lo Chi Yip, [2000] 3 HKLRD 270, 276 where Stuart-Moore V-P said:

"The other ground for justifying a reduced discount was said to be the late plea entered on 'the very first day of the trial'. In some circumstances, that might have been a justification for slightly reducing the discount although we do not seek to encourage that view. This will entirely depend on all the circumstances of individual cases, particularly when considering whether a plea at court on the first day of trial has been a technical manoeuvre resulting in frightened or reluctant witnesses being forced to come to court, or resulting in a prolongation of an investigation that could have been curtailed far earlier if a plea had been indicated at the first opportunity. These are examples and by no means do they provide an exhaustive list."

8.We have asked counsel for the respondent to explain what particular or unusual circumstances in this case would warrant a departure from the norm. She has not persuaded us of any. This was a very straightforward case of its kind and we see that there was but one ring file of documents and that such expert evidence as was to be called was secured and set out even before the applicant's arrest. We think with respect that the judge erred in his basic approach to the extent we have explained and, further, that there is really nothing of substance in this particular case to have warranted a departure from the normal one-third discount.

9.Accordingly, we grant the applicant leave to appeal against sentence, treat this hearing as the appeal, allow the appeal, set aside the sentence of three years' imprisonment and substitute one of two years and eight months' imprisonment.

Representation:

Mr John Haynes assigned by the Legal Aid Department for the Applicant

Ms Mary Sin, SADPP of the Department of Justice for the Respondent