HKSAR v. Yip Kwok To

CACC352 /2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL 352 OF 2004

(ON APPEAL FROM DCCC No.313 OF 2003)

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BETWEEN:

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Before: Hon. Yuen JA and Lugar-Mawson J in Court

Date of hearing and judgment: 21 December 2004

Date of Reasons for Judgment: 4 January 2005

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REASONS FOR JUDGMENT

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Hon. Yuen JA (giving the reasons for judgment of the court):

1.This was a renewed application for leave to appeal against sentence.  At the conclusion of the hearing, we dismissed the application and indicated that we would reduce the reasons for our decision into writing to be handed down.  We do so now.  

2.On 31 July 2004, the Applicant pleaded guilty before HH Judge Gill to six charges of theft and one charge of failing to surrender to custody without reasonable cause. 

3.The modus operandi of some of the charges of theft was similar.  The Applicant together with another person (“the 2^nd Defendant”) would falsely accuse shoppers (“the victims”) of having used counterfeit banknotes and demand compensation.  The victims would be taken to ATM’s where the victims would be required to key in their account and PIN numbers.  The Applicant would then cause sums of money to be transferred out of the victims’ accounts.  In respect of some other charges of theft, cash was taken from the victims, and in one charge, money was taken from a victim to buy mobile phones which the Applicant and the 2^nd Defendant took.  No money was recovered. 

4.As for the charge of absconding, the Applicant had failed to appear on the first day of trial on 17 July 2003.  A warrant of arrest was issued and on 25 June 2004, he was arrested in Kowloon during a stop and search operation.

5.The Applicant was sentenced to a term of imprisonment of 1 year and 6 months for each charge of theft, which the judge then reduced by 4 months (or 2/9) to reflect his plea.  In respect of the charge of absconding, the judge took a starting point of 6 months which he reduced by the customary 1/3 to reflect the plea.

6.The judge ordered that the term of sentence for the 2^nd charge be served consecutively to that for the 1^st charge, the term of sentence for the 3^rd charge to be served concurrently with that for the 2^nd charge, 8 months of the term of sentence for the 4^th charge to be served consecutively to that for the 2^nd charge, and the terms for the 5^th and 6^th charges to be served concurrently with that for the 4^th charge.  He also ordered that 4 months of the term of sentence for the 7^th charge be served consecutively to that for the 4^th charge.  The end result was a total sentence of 3 years and 4 months.

7.The Applicant’s grounds of appeal were: (i) that the judge had been unfair to him because the 2^nd Defendant had been charged with two further offences (claiming to be a member of a triad society and criminal intimidation) but was given a similar total sentence of 3 years and 4 months; (ii) the judge gave a reduction of only 2/9 to reflect his plea in respect of the theft charges; and (iii) the judge had failed to take the total sentence into account.

8.In our view, these grounds were not arguable.  First, the judge had adopted the same starting point (1 year and 6 months) for the offences that the Applicant had been charged with in common with the 2^nd Defendant and had given the same reduction for the plea (4 months).  The 2^nd Defendant had been convicted of two further offences but those offences were committed in the course of, and as part of, the same scheme involving the Applicant and the 2^nd Defendant.  Accordingly, we do not see any inconsistency in the judge’s approach in sentencing the two defendants.

9.As for the second ground of appeal, the judge was entitled to give less than the usual 1/3 discount for the plea because by absconding, the Applicant had failed to plead guilty at the earliest opportunity (for the rationale for a smaller reduction for pleas where the defendants had absconded earlier, see HKSAR v Kenny Ip Cr App 324/2000 and HKSAR v Lee Man-ki Cr App 66/2000).

10.Finally, the fact that the judge certainly had the totality principle in mind was clearly shown by the care with which he took to arrive at the total sentence which could not be said to be manifestly excessive.

11.For the reasons set out above, this application was dismissed.

The Applicant in person, present

Miss Louisa Lai, Senior Assistant Director of Public Prosecutions, for the Respondent