HKSAR v. Lo Shiu Wah
Read the full judgment text of CACC 399/1999 on BabelCite. This Court of Appeal judgment was delivered on 24 November 1999 before Stuart-Moore VP, Leong JA and Gall J.
Criminal law – theft – breach of trust – sentencing – appeal against sentence – starting point – guilty plea discount – absconding while on bail – Criminal Procedure Ordinance (Cap.221) section 9L – whether starting point of 24 months excessive for theft of HK$40,000 by business operator – whether absconding defendant entitled to full one-third discount for guilty plea – sentencing principles for breach of trust in theft cases – R v Barrick applied to determine appropriate starting point – HKSAR v Poon Chum Kong applied to reduction of plea discount for absconders – Lau Tak Ming, Yiu Tat Choy and Choi Wing Wah considered on tariff and discount principles – applicant's breach of trust as day-to-day manager of partners' restaurant business, misappropriating 16% of capital contributed – applicant absconded for approximately five years after being granted bail and was re-arrested at border – District Court judge took 24 months as starting point and applied one-third discount, yielding 18 months – Court of Appeal held starting point of 12 months was appropriate having regard to the modest sum under R v Barrick and absence of aggravating features – held that one-third standard discount should be reduced to one-quarter for absconding defendant because plea was not tendered at the earliest opportunity and caused loss of evidence, witness difficulties and additional preparation costs – sentence varied to 9 months' imprisonment – application for leave to appeal treated as hearing of the appeal.
Legal issues: Whether the starting point of 24 months' imprisonment was too high · Whether the full one-third discount for guilty plea should apply notwithstanding the applicant's absconding · Whether the 18-month sentence was manifestly excessive
Outcome: Leave to appeal granted; appeal allowed; sentence varied from 18 months to 9 months' imprisonment.
Cited by 4 cases · Cites 2 cases
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CACC000399/1999 CACC 399/99 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO.399 OF 1999 (ON APPEAL FROM HCCC 408 OF 1998) ------------
------------ Coram : Hon Stuart-Moore V-P, Leong JA and Gall J Date of Hearing : 24 November 1999 Date of Judgment : 24 November 1999 ----------------------- J U D G M E N T ----------------------- Gall J (giving the judgment of the Court) : 1. The applicant was convicted by HH Judge Poon in the District Court of one charge of theft. He was sentenced to 18 months' imprisonment and now seeks leave to appeal that sentence. 2. It was an agreed fact that the applicant was invited by two others to join together to operate a seafood restaurant in 1993. The applicant had day-to-day charge of the running of the restaurant. The two other partners contributed capital in the sum of $250,000 to the operation of that restaurant and when entering his plea, the applicant admitted theft of $40,000 of that capital. There has been no restitution. 3. Whilst awaiting trial in 1994, the applicant absconded and was re-arrested in March this year as he sought re-entry to Hong Kong at the Lo Wu Border Crossing. The Judge took as her starting point for the sentence a period of two years, basing her decision upon the amount stolen, the fact that the applicant was in a position of trust in respect of his partners, and that he took the sum of money soon after the business had started. She reduced the term of imprisonment to 18 months to reflect the plea of guilty by the applicant and his clear record. 4. There are three grounds of appeal. Firstly, that the learned Judge was wrong in adopting 24 months as the starting point which was too high; secondly, where the applicant had a clear record and voluntarily returned to Hong Kong to "face the music", the learned Judge should not have departed from the usual one-third discount in sentence; and thirdly, in the circumstances, the sentence was manifestly excessive. It is conceded by the applicant that the custodial sentence imposed upon him is not wrong in principle. 5. In respect of the first and third grounds, Mr Tong argues that the amount taken was small, being the sum of $40,000, and being some 16% of the total sum entrusted to him by his partners. He said that the money was used to pay the salaries of employees in another restaurant operated by the applicant, and that the money was taken over a short period and did not, therefore, amount to a long and on-going course of conduct. 6. Mr Shiu, on behalf of the respondent, argued that the penalty taken as the starting point by the Judge was an entirely appropriate one given all the circumstances of the case and the breach of trust. 7. In 1993, the authority most generally used in the sentencing of cases involving theft, particularly when a breach of trust was involved, was that of R v Barrick [1985] 81 Cr App R 78. At page 82 of that report, the Lord Chief Justice said :
That case involved breaches of trust in respect of false accounting, obtaining by deception and theft. 8. That would have been the approach which the court would have adopted in sentencing this applicant had he stood trial in 1994. The sum of ￡10,000 referred to by the Lord Chief Justice was a substantially greater sum than the $40,000 involved in respect of this matter. To reflect the difference in the sum and to reflect the fact that there were no aggravating features in this case, which in any way magnified the penalty which ought to have been considered under the authority of Barrick, we are of the view that the trial judge should, in this case, have taken a starting point of 12 months' imprisonment. 9. In respect of the second ground of appeal, the District Judge accepted, as do we, that the usual discount for a plea given at a timely period before the actual trial is embarked upon is one-third of the sentence taken as the starting point. She declined to follow that practice on the basis that the applicant had absconded from the jurisdiction, having been arrested and granted bail and had returned some five years later. She held that there was no positive act of surrender inasmuch as the applicant did nothing to advise the authorities that he was surrendering or to bring to their attention the offence for which he had been arrested. She held, for the purposes of sentence, that the applicant did no more than present himself at the Lo Wu checkpoint and seek entry to Hong Kong. 10. Mr Tong, whilst not arguing that this was a voluntary surrender, argues that credit should be given to the applicant because this was a voluntary return to Hong Kong. With this, we do not necessarily agree. 11. In the circumstances, it is significant that a considerable period of time had passed, and it is our view that in the absence of any other act by the applicant to indicate that he was surrendering, the inference to be drawn from the circumstances was that he was attempting to re-enter Hong Kong to continue his life and avoid the consequences of his previous acts. 12. In respect of the argument raised by Mr Tong that the applicant ought to have been given the full one-third discount because he is in no different position, having eventually pleaded to this matter, to any other accused who pleads guilty prior to his trial, I refer to the judgment of HKSAR v Poon Chum Kong CACC 228/99 where Keith JA said :
13. We accept that in the present case, no second trial was needed. However, the effect of a long delay such as five years in this case is that evidence is lost, witnesses are harder to locate and the memory of witnesses is affected by the long period of time. Greater difficulties arise in the preparation of the trial, greater work has to be done to obtain the witnesses and to prepare the matter for an effective prosecution and hearing. It is a matter which occasions the authorities and the courts greater expense and time. That being so, we are of the view that the recent judgment of Keith JA accurately reflects the position and that the trial Judge in this matter rightly reduced the one-third standard discount to one of one-quarter. A person who absconds while awaiting trial and returns after a long period of time, and then pleads guilty when he finally faces trial, cannot necessarily expect to get the same discount when finally sentenced, as he would have done if he faced trial in the first place and entered a plea of guilty then. 14. The application is therefore allowed, arising from our conclusion as to grounds 1 and 3, and the hearing of the application is treated as the hearing of the appeal. The sentence is varied to one of nine months' imprisonment.
Representation: Mr Gavin Shiu, SGC for DPP/Respondent Mr Paul Tong, inst'd by DLA, for the Applicant |
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