Case Document

100%Judiciary

HCMA000027X/2003

[English Translation 英譯本]

HCMA 27/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 27 OF 2003

(ON APPEAL FROM TMCC 3324/2002)

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BETWEEN
	HKSAR	Respondent

	AND

	CHAN MEI KUEN	Appellant

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Coram: Deputy High Court Judge Barnes in Court

Date of Hearing: 19 March 2003

Date of Judgment: 19 March 2003

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J U D G M E N T

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1.The Defendant was convicted on her own plea of one count of theft, contrary to s. 9 of the Theft Ordinance (Cap 210). She was sentenced to 9 months' imprisonment. She now appeals against her sentence.

Brief facts of the case

2.The Appellant took the opportunity to steal a wallet and HK$180.70 from the handbag of PW1 (the victim) whilst PW1 was shopping for fruits at the scene. The victim snatched back the wallet and cried for help upon discovery. The Appellant immediately fled the scene, but was eventually intercepted by the victim's husband. A report was made to the police.

Reasons for sentence

3.The learned Magistrate's reasons for sentence can be seen at p. 13 of the Appeal Bundle:

"3. The offence committed by the defendant is one of theft for which the Court of Appeal has already laid down clear sentencing guideline. The usual starting point is from 12 to 15 months, depending on the circumstances of the case. (R v Lau Kin Hong- Mag App No. 355 of 1996) and (R v Vy Van Kien- Mag App No. 1162 of 1990). If a defendant pleads guilty at the earliest opportunity, she is entitled to a one-third discount. It shows her genuine remorse and saves the court's time or the witnesses' time in attending court to give evidence. If a defendant pleads guilty only before the trial finally commences, it does not show his genuine remorse and he is not entitled to a one-third discount.

4. As far as this case is concerned, the defendant pleaded guilty only before the trial commenced. Having taken into account all the circumstances of the case, the defendant's background including that it was the first time she committed an offence of similar nature, that the property involved was not of substantial value and had been returned to the victim, I take the lowest 12 months as the starting point and give her a 3-month discount for her guilty plea. Accordingly, she is sentenced to 9 months' imprisonment."

Grounds of appeal

4.Mr Wong submitted that failing to give the Appellant a one-third discount merely on the ground that she did not tender her guilty plea in Court 1 and that she only pleaded guilty and agreed to the facts of the case before the prosecution opened its case on the day of trial, is inconsistent with the case law and the fundamental principle of the criminal courts in Hong Kong. He cited the following 4 cases in support:

(1) HKSAR v Kwok Kam Ming, HCMA 398 of 1999: A defendant is entitled to the normal one-third discount if a plea of guilty is tendered on the day of trial before it commences and not at the first hearing for mention;

(2) HKSAR v Lau Sau Kit, CACC 614 of 1997: A defendant is entitled to one-third discount if a guilty plea is tendered at the appropriate opportunity; in the case, a guilty plea tendered on the first day of trial warranted a full discount of one-third of the sentence;

(3) HKSAR v Lo Chi Yip & Another [2003] 3 HKLRD 270: Unless it was a technical manoeuvre on the part of the defendant resulting in frightened or reluctant witnesses being forced to come to court, or resulting in a prolongation of an investigation, a defendant is entitled to full discount of one-third of the sentence on a guilty plea tendered at the appropriate time; a guilty plea tendered on the first day of trial is a timely plea;

(4) HKSAR v Chu Shi Keung [2000] 1 HKLRD 495: A guilty plea tendered after a voir dire is one of the examples of an untimely plea; if a defendant had jumped bail, he may not be given a one-third discount of the sentence.

5.Mr Wong related what he considered to be the fundamental principles of the Criminal Law in Hong Kong:

(1) No matter how deep a defendant's conviction of his guilt is or how well he knows he is guilty at law, it does not follow that he will definitely be convicted by a court. The onus of proof of his guilt rests with the prosecution and the standard required is one of beyond a reasonable doubt. The defendant is entitled to an acquittal if the prosecution evidence is insufficient. It is a fundamental principle of the Criminal Law in Hong Kong.

(2) In order that a defendant is in a position to know the likelihood of his conviction by the court, he must be given reasonable time to examine the prosecution evidence, including witness statements, exhibits and unused material of the prosecution.

(3) In magistracies, the above-mentioned material, except the charge sheet and brief facts of the case, will not normally be provided by the prosecution at the first hearing. Mostly, they will be provided after the defendant has pleaded not guilty at the first hearing. In the circumstances, the defendant will normally be unable to make a meaningful analysis of the strength of the prosecution evidence at the first hearing.

(4) Reducing the discount merely on the ground that a defendant has not pleaded guilty at the first hearing is tantamount to pressurizing a defendant into pleading guilty when he is without sufficient information and the knowledge of the strength of the prosecution evidence. It is an erosion of the principles of Criminal Law in Hong Kong.

Reply from the Respondent

6.Mr Poon for the Respondent replied that the learned Magistrate is entitled not to give the Appellant a one-third discount as she tendered her guilty plea not at the earliest opportunity but only on the day when the case finally came to trial. He relied on 3 cases in support:

(1) R v Wong Pui Kei, CA 622/95: Discount given for an early guilty plea is different from a guilty plea tendered on the day of trial;

(2) HKSAR v Liang Chun-wai, CA 182/97: The defendant pleaded guilty only on the day of trial, the judge is entitled to give him less than a one-third discount; and

(3) HKSAR v Yuen Hing-yu, MA 765/98: The defendant did not plead guilty at the earliest opportunity but tendered his guilty plea only on the day of trial, thereby wasting resources. The Magistrate is entitled to give him only a one-fourth discount.

Judgment

7.Having heard the submissions this morning, I adjourned the case for judgment in the afternoon. During the adjournment, Mr Poon submitted the following case: HKSAR v Li Tak Yin, CACC 395/2002 for my reference. It is a case in favour of the Appellant.

8.The Court of Appeal handed down judgment of that case on 6 February this year. The trial judge, Deputy Judge Wright, at the time gave the defendant a 25% discount on his guilty plea. On appeal, Mr Justice Stock, JA had this to say:

"12. The question of the plea of guilty and its timing is less straightforward. It is established that "in the absence of good reason where a timely plea has been entered, a defendant is entitled to a full one-third discount." See HKSAR v Wong Ka-kuen Cr App 35 of 1998; and see also HKSAR v Lo Chi Yip [2002] 3 HKLRD 270, 275, and HKSAR v Yeung Kin Man [2002] 2 HKLRD 821,823.

13. The fact that a guilty plea has been tendered on the first day of trial where it could have been tendered earlier is generally not, of itself, without more, sound reason for reducing the discount normally given; although there will be cases and circumstances where a delay or last minute plea might well warrant such a reduction. In Lo Chi Yip, to which we have made earlier reference, and which concerned a plea of guilty entered by the first applicant on the first day of trial in the District Court, the Court of Appeal did not think that to be an untimely plea (see page 275H), and went on, at page 276, to say this:

"The other ground for justifying a reduced discount was said to be 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 the 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 witness being forced to come to court, or resulting in prolongation of an investigation that could have been curtailed far earlier if a plea indicted at the first opportunity. These are examples and by no means do they provide an exhaustive list."

14. This is the current approach. 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 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 sound reason existed in this case."

9.In my view, the current approach had been clearly stated by Stock, JA in the above case. In the present case, I do not see any sound reason over and above the fact that a guilty plea was only entered by the Appellant on the first day of trial (to warrant a lesser discount). Accordingly, the appeal is allowed, the sentence is set aside and substituted with 8 months' imprisonment.