HKSAR v. Li Tak Yin

CACC000395/2002

CACC 395/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 395 OF 2002

(ON APPEAL FROM HCCC NO. 345 of 2001)

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Coram: Hon Stock JA and Pang J in Court

Date of Hearing: 6 February 2003

Date of Judgment: 6 February 2003

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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):

1This applicant pleaded guilty before Deputy High Court Judge Wright to three counts on an indictment: burglary, handling stolen goods and possession of dangerous drugs. This is his application for leave to appeal against sentence.

2The applicant was arrested on 21 July 2001. He had been seen wandering about the corridors of Wah Tai House in the Wah Fu Estate and the police were called. They found on his person ten tablets of estazolam, three of ketamine and one tablet of methylenedioxyamphetamine. The applicant told the police that the drugs were for his own consumption. The possession of the drugs formed the basis of the third count. After his arrest, he admitted the commission of two other offences, which formed the basis of the first and second counts. The first was a charge of burglary. What had happened was that on 28 March 2001 the occupant of a room at the Wah Fu Estate went out one afternoon leaving her 11-year old son there, and the applicant gained entry by asking the youngster for a questionnaire to be filled in - this was all a ruse - and whilst there he stole cash, five bracelets, eight rings, some pendants and other jewellery belonging to the boy's mother. The police found some of the properties at the applicant's home.

3The second count on the indictment alleged robbery. The scene was the Wah Kwai Estate, and here again a young male was the immediate victim. On 4 May 2001 a man had followed him into his home and threatened him and ransacked the flat, and stole a number of credit cards, as well as an identity card and some jewellery and watches and cash. When the police were searching the applicant's home after his arrest for the drugs offence, they found a number of the items which had been stolen in the course of this robbery. He told the police that he received this property knowing it to be stolen. He pleaded guilty in due course, not to the robbery, but to handling stolen goods; and that plea was accepted by the prosecutor.

4The applicant was aged 25 years at the date of these offences, and has a record of offences of a similar nature. Ignoring an offence when aged only 12 years, we see that he had two previous convictions for handling stolen property; and two for burglary; the last in August 1998 in respect of which he was sent to prison for a period of two years and nine months, at the same time receiving a sentences of twelve months' imprisonment for possession of someone else's identity card. We notice too that in December 2001 he was sentenced to a term of five months' imprisonment for five offences of giving false information to a pawnbroker. We are told today by Mr Poll that those offences were connected with the ones with which Deputy High Court Judge Wright was concerned.

5Given the applicant's very poor and recent record of like offences, and the failure of earlier sentences to deter him, the judge took a starting point for the burglary (Count 1) of four years' imprisonment.

6In relation to the second count, the judge said that the applicant knew that the property was the result of a robbery, and had previously been sentenced for handling offences. Again, he took a starting point of four years' imprisonment. For the drugs offence he took a starting point of eight months' imprisonment.

7The sentencing judge then afforded to the applicant a reduction from those starting points of 25% to reflect his pleas of guilty. He did not accord to him the one-third reduction which is normally accorded in recognition of a plea of guilty, and the reason he gave was as follows:

"It has now become the practice to allow a one-third reduction where an accused enters such a plea at the earliest opportunity. The primary reasons for this are that, firstly, it may be taken as a demonstration of remorse and, secondly, it avoids the expense of a trial. However, you did not enter your pleas until what may well be regarded as the last possible practical time. At a recent pre-trial review you indicated that you would plead guilty to the drugs charge but at the same time additional trial time was sought due to your indication that you would challenge the admissibility of certain statements made by you.

In the circumstances I will afford you a reduction of one quarter from the respective starting points." (Tr pp 12-13)

8The result was that he sentenced him as follows:

(1) On the first count (burglary): three years' imprisonment.

(2) On the second count (handling stolen property): three years' imprisonment.

(3) On the third count (possession of dangerous drugs): six months' imprisonment.

9He then took the view that the appropriate totality was five years and three months (that is seven years before plea), a totality which he effected by ordering the two years and three months on Count 2 to be served consecutively to the term on Count 1, the remainder concurrently; and the term of six months on Count 3 to be served concurrently with the other terms.

10There are two grounds of appeal. The first is that the judge erred in not according to the applicant a sufficient discount to reflect the plea of guilty; and the second is that the starting point adopted for the handling counting was too high.

11We can readily deal with the second ground, which contends that "such a high sentence cannot be justified on the facts of the case". Our function is to assess whether the sentence is manifestly excessive. We do not think that we can say that it was. A large number of items were stolen in the robbery, and were found in the applicant's possession. The applicant had a record for handling stolen property as well as for burglary. A starting point of three years' imprisonment was not too high for the offence itself and given this record and the aggravating feature of persistence and the failure of previous sentences to deter, the increase in the starting point was, in our judgment, justified.

12The 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.

13The 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 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 indicted at the first opportunity. These are examples and by no means do they provide an exhaustive list."

14This 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 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. We note incidentally the change which occurred in the situation, the history of which is not clear, whereby the charge in Count 2 was robbery but, following discussions with the prosecution before the date of arraignment, so we are told, the applicant offered a plea to handling, which was accepted.

15Accordingly, we shall allow the application for leave and, treating the hearing as the appeal, we allow the appeal and set aside the sentences imposed by the judge and substitute the following:

In the case of Count 1: a sentence of two years and eight months' imprisonment.

In the case of Count 2: a sentence of two years and eight months' imprisonment.

In the case of Count 3: a sentence of five months' imprisonment.

We order that the two years of the sentence imposed on Count 2 shall run consecutively to the term imposed on Count 1, the remainder to run concurrently; and that the sentence imposed on Count 3 shall run concurrently to that imposed on Counts 1 and 2; making a total of four years and eight months' imprisonment.

Representation:

Mr Michael Poll assigned by the Legal Aid Department for the Applicant

Mr Vincent Wong, SGC of the Department of Justice for the Respondent