HKSAR v. Z

CACC 506/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 506 OF 2004

(ON APPEAL FROM DCCC 1036 of 2004)

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BETWEEN

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Before: Hon Stuart-Moore VP and Yuen JA

Date of Hearing: 26 April 2005

Date of Judgment: 26 April 2005

Date of Reasons for Judgment: 11 May 2005

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REASONS  FOR  JUDGMENT

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.Most of the proceedings in this application for leave to appeal against sentence were held in camera following the procedure laid down in HKSAR v Tse Ka-wah [1998] 1 HKLRD 925 where this court adopted the Sivan procedure (see: R v Sivan and Ors [1988] 87 Cr. App. R. 407).  The single point at issue was whether the applicant should receive an additional discount on the sentence he received for “significant mitigation” which had not been made available to the judge in the court below.  The suggested mitigation related to information provided by the applicant to the police.

2.At the conclusion of the proceedings, in open court, we dismissed the application.  We now give our reasons for so doing.

The facts

3.On 13 November 2004, the applicant pleaded guilty in the District Court before Judge Line to 5 charges of fraud and 4 charges of theft, committed between 5 June 2003 and 20 July 2004, for which he received a total of 5½ years’ imprisonment.  No complaint was made in these proceedings about the totality of the sentence or any aspect of the judge’s approach on the material placed before him. 

4.It is unnecessary to say more about the facts of the case than to recite part of the judge’s sentencing remarks which were as follows:

“	2.	… To do what you did and repeatedly did with six victims over 13 months was a wicked course of conduct.
	3.	You are a fit and intelligent man yet you chose to make money in this detestable way by preying on women, using your charm and dishonesty to part them from their savings.  You knew full well the types of person they were.  They were vulnerable to a man like you.  You could look them in the face as you told your lies and spun your webs of deceit, all the while knowing the harm that you were doing them.  You showed them no mercy and I am minded to show you none.
		……..
	7.	You were caught, you were arrested, and that was in September 2003.  You were given police bail.  You then committed Charge 4 whilst on police bail.  You then came before the Magistrates’ Court.  Mr Mackintosh had your number and recognised you for what you were.  He denied you bail.  You went to the High Court in January 2004, and despite the nature of these crimes, despite the allegation of a further offence on police bail, despite your appalling record, you were given bail there.  I limit myself merely to saying that was unfortunate.  It exposed two more women to your confidence tricks and cost one of them very dear.  She lost over a million dollars to you.
	8.	The abuse of the freedom you gained when you successfully obtained bail is a grave aggravation, and that success will now cost you dear.
	9.	You obtained just under one and half million dollars in all.  You did that over a 13-month period. …You have paid not a penny back.  I do not know what has become of the money.  I do not expect a dishonest man like you to tell me, but one thing I do know is that rather than pay your victims back you chose to spend your money on a defence.  You had leading counsel defend you today on the mitigation.  I do not punish you for that, but it robbed you of the scope of creating some mitigation for yourself, albeit late in the day, by behaving decently with what funds you had now.
	10.	The only mitigation there is, are the pleas of guilty and I take the point on board that it saved the victims the embarrassment of giving evidence against you because, given the way you seduced them and parted them from their money, it would have been an embarrassing tale for them to tell in public.” (Appeal bundle at pp. 22-24)

Previous convictions

5.The judge rightly described the applicant as a man with an appalling record for dishonesty.  At the age of 43 he had appeared before the courts on 7 previous occasions.  These appearances involved 24 theft-related offences in respect of which he had served over 10 years’ imprisonment.  Plainly, the applicant is a hardened confidence-trickster. 

6.After 1989, when the applicant was first sent to prison for criminal deception, he received, in 1995, a 2½-year sentence (after a successful appeal reduced the original sentence on the ground that he had materially cooperated with the authorities).  This sentence was in respect of 6 cases of criminal deception as well as blackmail and theft.  This was followed in 1996 by a sentence totalling 7 years’ imprisonment, to run consecutively to the sentence he was already serving, for a further 12 deception offences.   The applicant again appealed on the ground that he had given material assistance to the authorities but, on this occasion, he was unsuccessful as he had already received full credit for his cooperation from the sentencing judge in that case.

The application

7.In the present case, Mr Boyton on the applicant’s behalf submitted that the applicant was entitled to an additional discount for information which he had supplied to police in respect of the arrest of an illegal immigrant who was found to be armed with a loaded pistol.  Following a trial in the Court of First Instance, this person was sentenced to 12 years’ imprisonment.

8.Mr Boyton’s submission, based upon the instructions he had received from the applicant, was that the applicant had provided this information while he was on bail in 2003 for some of the offences in the current series of frauds.  On the face of matters, therefore, as Judge Line had not been informed about this, it appeared that the applicant might well have been deserving of some additional credit in the form of a reduction in his present sentence of 5½ years.

9.In addition to the instructions received by Mr Boyton, we were provided with the applicant’s affirmation dated 9 March 2005, together with a letter from the Department of Justice, which confirmed that the applicant had provided the information which led to the arrest and conviction of the armed illegal immigrant.  The affirmation contained an amount of irrelevant material but, where relevant, it was vague, perhaps deliberately, as to the dates when the applicant’s information was passed to the police.  It did not positively state, unlike the instructions Mr Boyton was given, at what stage the information had been passed to the police.  This was a crucial factor which any court dealing with an issue of the present kind has to know before deciding whether credit should be given.

10.It is well established that those who provide valuable information or assistance leading to the arrest or conviction of other criminals, or the recovery of property connected with crime, will generally be rewarded by the court with a discount in sentence where the information or other material assistance has been supplied after the arrest of the offender.  The courts do not offer discounts to those who have acted as informers before their arrest as they will have had their own motives to serve by acting in such a way, usually no doubt arising from the expectation of a financial reward either from an informer’s fund or some other source. 

11.It is not, therefore, mitigation of any weight that a person has acted as a police informer in the past.  The policy of the courts is confined to rewarding offenders in the only practical and tangible way available to them by reducing the sentences of those who give valuable post-arrest information or assistance while, at the same time, providing a mechanism which is designed to act as an incentive to such persons to come forward with assistance to the authorities.

12.Mr Boyton readily accepted that he had found no decision of this or any other court where a prisoner had ever received a discount for co-operation of the kind envisaged where this had been provided before the prisoner’s arrest or detention.  It is implicit in every decision, of which there are many in the Hong Kong and in the English courts, that credit, in the form of a discounted sentence, only relates to post-arrest co-operation.

13.Bearing in mind the applicant’s history for dishonesty, his knowledge of the appellate system (this being the third time he has sought to appeal on the ground of further credit being due to him) and Mr Boyton’s written submission reading: “the particular circumstances of this case were that the information was imparted around 2002 (a typographical error, he explained, which should have read ‘2003’) when the applicant was on bail for the present convictions”, the court plainly needed to look carefully at when the relevant information was provided by the applicant to the police.

14.After a somewhat protracted hearing, including a break in proceedings to enable Mr Boyton to take further instructions, the picture eventually emerged that the applicant had provided the relevant information to police, and later acted upon it, well before his arrest for any of the offences in the current series.  In this regard, we were particularly assisted by a letter from a senior police officer which Mr Robert K Y Lee on the respondent’s behalf had made clear, well in advance of these proceedings, he would only reveal at the hearing itself in view of its sensitivity.  Although Mr Boyton could have availed himself of an opportunity to see the letter earlier, it is clear he had not in fact done so before he glanced at it immediately before the hearing commenced. 

15.It follows that Mr Boyton’s initial submission was based entirely upon the applicant’s instructions.  However, having appreciated the true import of this letter, and having come to the realisation that he had put the applicant’s case on a false premise, Mr Boyton immediately apologised, adding that if he had realised the position beforehand it may well have affected his decision to proceed with the application.  His candid apology was, of course, accepted once we realised how he had been misled by the instructions he had received.

16.Mr Boyton was left with a last resort plea in which he pointed out, on instructions, that the applicant had received no financial advantage before his arrest for the information and co-operation he had given to the police in regard to the arrest and conviction of the gunman.  As we have already said, however, this form of mitigation carries no weight in the circumstances which have arisen.

Chronology of events 

17.The true chronological sequence of events shows that the applicant provided the relevant information to the police on 18 April 2003.  He informed the police that a number of illegal immigrants would be coming to Hong Kong on 24 June 2003 to commit robbery with firearms and that he had been asked to pick them up from a particular location on the shoreline of Lantau.  The applicant was then given an immunity from prosecution by the Department of Justice on 19 June 2003.  He did not make a witness statement and he was given an assurance that he would not be listed as a prosecution witness.  In the result, 3 illegal immigrants from the Mainland were intercepted by police on 24 June 2003 following the applicant’s information.  One of these was repatriated following court proceedings, another was sentenced to 2 years’ imprisonment for aiding and abetting illegal immigrants to come to Hong Kong and the third was, as we have said, sentenced in due course to 12 years’ imprisonment for possession of a firearm and ammunition without a licence.

18.During the time between 18 April 2003 and 24 June 2003, the applicant committed the 1^st offence of fraud in the present series.  This was on 5 June 2003.  The 2^nd charge related to a fraud on 29 August 2003 and the 3^rd was committed on 1 September 2003.  The police first arrested the applicant in respect of these offences on 17 September 2003, some five months after he had acted as an informer, and he was then granted ‘police bail’ pending further enquiries.

19.Four days later, on 21 September 2003, the applicant committed the 4^th offence of fraud in the series.  By this stage, the applicant had obtained over $400,000 from his victims. 

20.The applicant was again arrested on 21 November 2003 and on this occasion Mr Colin Mackintosh, sitting at Kowloon City Magistrates’ Court, remanded the applicant in custody.  However, on 16 January 2004, Pang J granted bail to the applicant following an application for bail in the Court of First Instance.  It is unfortunate that this enabled the applicant to commit a further 5 offences of dishonesty concerning the last two victims which involved sums totalling more than $1 million.

21.This chronology indicates that there are no grounds on which to accede to this application.  It is quite apparent that while the applicant was providing information to the police, for motives which he has not revealed, he was at the same time carrying on his criminal activities.  Those activities were sophisticated in their nature and no doubt the applicant believed he could get away with what he was doing.  By providing information to the police before his first arrest, it may be that he thought he could put himself in a good light with the police when all the while he was engaged in serious crime himself.

Conclusion

22.There was no substance in this application and, for the reasons we have given, it was dismissed.

Mr Robert K Y Lee, SGC, of the Department of Justice, for the Respondent.

Mr David Boyton, instructed by Messrs Haldanes assigned by Director of Legal Aid, for the Applicant.