HKSAR v. Lam Pak Shing

CACC000388/2000

CACC 388/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 388 OF 2000

(ON APPEAL FROM DCCC 1018 OF 1999)

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Coram: Hon Mayo V-P and Stock JA in Court

Date of Hearing: 23 March 2001

Date of Judgment: 23 March 2001

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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 applicant pleaded guilty in the District Court to five offences: two charging him with conspiring with others between November 1991 and October 1999 to steal; two charging him with handling stolen property; and one offence of offering an advantage to a public servant. On 18 January 2000 he was sentenced by Judge Day to terms which totalled two and a half years' imprisonment. He now seeks leave out of time to appeal against those sentences.

2. The offences were rightly described by the judge as "a disgusting series of offences". The applicant was an employee of the Urban Services Department at the Cape Collinson Crematorium. What happened was that over a period of eight years, he and his colleagues there stole property from the deceased. The conspirators would open coffins placed before cremation and steal from the bodies earrings, finger rings, necklaces, watches, clothes, trousers, sports shoes and ties and then distribute property amongst themselves. Then, when another public servant, the applicant's supervising officer, threatened to report the matter unless the applicant gave him some of the stolen property as an inducement not to make such a report, the applicant did as asked. It was common ground that the applicant joined in the scheme after he had seen others there stealing.

3. The other conspirators and thieves had by the date this applicant was sentenced not yet been charged and, given the uncertainties then prevailing as when they might be charged and tried, the judge decided to sentence this applicant without waiting for their trial, though he recognized that in the normal course of events, it is desirable for defendants who are convicted to be sentenced all at once.

4. Reports were placed before the court, both probation and medical reports, which showed that this applicant had suffered leukemia as a child and had had a particularly difficult life which had materially disadvantaged him and caused psychosocial problems. The judge dealt with him with due regard to these disadvantages and to the fact that, save for one minor matter a long time ago, the applicant had not offended against the criminal law. He was at the date of sentencing a man aged 32 years. He had pleaded guilty, was not the instigator of the offences, and had also, by the date of sentence, provided to the prosecution a witness statement with a view to giving evidence at the trial of the co-conspirators. All these mitigating factors were given weight as against the particular seriousness of the offences.

5. The judge took a starting point of four years' imprisonment for the conspiracy and handling offences; reduced that by one third for the pleas of guilty; by a further three months for the assistance given to the authorities up to the date of sentence; and by a further one month for the other mitigating factors. That led to a total of 28 months; all to run concurrently. The judge sentenced the applicant to a term of nine months' imprisonment for the offence of offering an advantage, making two months of that consecutive to the terms imposed for the other offences, and hence the resulting sentence of two and a half years.

6. The applicant filed his notice of application significantly out of time saying that he was quite unaware of the time limit for lodging an appeal. The grounds of appeal which he then stated were that the custodial term was too long, and that his sentence should be reduced because he was to give evidence in the case against the co-conspirators.

7. The trial of the co-conspirators concluded on 12 March 2001. By reason of a direction made when the application for leave came before the single judge in January this year, this application has been listed within a very short time of the conclusion of those proceedings.

8. In the normal course of the events, credit would be given to an applicant who, by the date of his appeal, has given assistance to the prosecution that was material, and in respect of which credit had not been given at the date of sentence. The applicant contends, or hoped to contend, that he has given such assistance. It is the fact that he did give evidence as a witness for the prosecution. The respondent says, however, that, as it transpires, that assistance was worthless, and did not constitute a helpful attempt by the applicant to render proper assistance, because his evidence in-chief and in cross-examination conflicted so materially that his evidence was disbelieved and not relied upon by the trial judge.

9. We have obtained that part of the ruling which the judge gave on the submission of no case to answer which is relevant to this appeal. We see from it the judge saying that when the applicant was cross-examined, he "overturned" what he had said in chief, and there is reference to the applicant admitting or saying that he suffered from schizophrenia and hallucinations. We pause to comment that in the medical reports that were submitted on the applicant's behalf at his own trial and in the very detailed probation reports, there is no suggestion that he suffered from either illness. Because he changed his evidence or, as the judge put it, "overturned" it, a number of the charges were dismissed.

10. We have heard from Mr Zervos for the respondent this morning as to what happened, and it appears that this applicant who is, and we intend to no disrespect on this account, relatively simple minded, was readily open to influence and that some influence appears to have been exerted upon him to change his evidence. That may be so, but the fact is that this applicant can hardly pray in aid in reduction of sentence conduct which in fact turned out to be a positive disservice to the prosecution, resulting in the acquittal on some of the charges of the co-conspirators, or some of them.

11. We are satisfied that the sentence imposed by the trial judge was not one day too long. There is nothing that this applicant can properly pray in aid of any further reduction and, accordingly, though we entertain the application for leave despite the fact that it is out of time, there is no merit in the application, and it is therefore dismissed.

Representation:

Applicant in person

Mr Kevin P Zervos, SADPP of the Department of Justice for Respondent