R. v. Li Chi Bun

CACC000005/1995

IN THE COURT OF APPEAL

1995, No. 5
(Criminal)

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Coram: Hon Nazareth, V.-P., Bokhary and Liu, JJ.A.

Date of Hearing: 29 March 1996

Date of Judgment: 29 March 1996

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant was convicted by His Honour Judge Kilgour in the District Court on a charge of conspiracy to possess false instruments contrary to common law and s.75(1) of the Crimes Ordinance, Cap. 200. He was sentenced to imprisonment for a term of 4 years and 6 months. He now seeks leave to appeal against sentence.

2. The conspiracy was for a group of conspirators to smuggle false credit cards into Japan to purchase mainly electrical goods. Three of the conspirators were arrested by ICAC investigators aboard two different aircraft at Kai Tak Airport as they were waiting to take off for Japan. The applicant was arrested at the adjoining Regal Meridian Airport Hotel.

3. In sentencing the applicant, the judge said this:

"The normal starting point expresses for offences of that kind is in the region of five years. I will, however, be dealing with you, D1, slightly differently from the others because it does seem to me from the facts in my possession that you were the chief organiser, may be with another, of this enterprise. You have also asked me to take into consideration the matters that have just been put to you which indicate that you have been familiar with this kind of activity since at least 1990. But by taking this matter into consideration, you have saved considerable public time and money and that will be considerably reflected in the sentence that I pass. I will be giving you an additional period of imprisonment but it will be nothing like the length it would have been had you been tried and convicted of this offence. Indeed, the total amount had that been the case, might well have been outside my jurisdiction. I take into account also that you are essentially of previous good character and that you did eventually plead guilty - to the to the conspiracy charge on the indictment that I tried. Had it not been for those factors, I would have passed a sentence on you in the. _ region of six years or more. As it is, I think that justice is properly done by passing a sentence on you and taking the matter that you have asked me to take into account in consideration, a sentence of four years and six months."

I should add that the reference to the matters that had been put to him and mentioned by the judge were contained in a memorandum of offences to be taken into consideration which specified one offence of conspiracy to defraud contrary to common law to be taken into account. It had been committed between September and October 1990 and related to conspiracy to defraud banks and credit bank companies by the production of credit cards in payment of goods.

4. The other matter that should be mentioned is that the applicant pleaded guilty on the third day of an 8-day trial. As pointed by Mr Cantrill for the Crown, he had first been able to see the strength of the prosecution case.

5. Mr Surman who appears for the applicant pursues his appeal against sentence upon three grounds. He says, first of all, that the judge was wrong to take 6 years or more as the starting point. It is not entirely clear what starting point the judge used, but counsel on both sides are content to proceed on the basis that it was 6 years. Mr Surman attempts to demonstrate the point he seeks to make by reference to a number of previous cases, in which, I have to say, the circumstances were different although credit cards were involved. In one, 5 years was used as the starting point, another 5½ years and in the third, 4 years. We do not find ourselves greatly assisted by reference to other cases in which the facts were different. It was not suggested that any matter of principle was propounded in those cases or any guidelines. So what Mr Surman is constrained to do is to persuade us that the starting point of 6 years was manifestly excessive. When one considers that the applicant did take a central part in this conspiracy and that was not sought to be disputed before us, we are unable to accept that the starting point was manifestly excessive or that it was wrong.

6. Mr Surman's other two grounds which I shall come to, seem to have more merit. The second ground was that the applicant failed to receive a proper credit for his plea of guilty. Assuming that the starting point was 6 years, it is plain that he did in fact receive significantly less than what is now the usual discount of 30%. But added to that is the 3rd ground upon which Mr Surman relies, i.e. that insufficient weight was given for the assistance that the applicant undoubtedly provided to the ICAC. He gave evidence in respect of another accused. When one has regard to that, it is clear that he did not receive a sufficient discount. The courts have repeatedly pointed to the necessity and desirability of encouraging pleas of guilty.

7. Having regard to all the circumstances, the plea and the assistance he has given, we think that clearly the total discount he was allowed inadequate. We propose to increase it so as to reduce his sentence of 4½ years to 4 years. This is not in mathematical terms a very substantial reduction, but it reflects in our view a proper application of the principles involved in granting discount both on pleas of guilty and on assistance. We accordingly grant leave to appeal and treating this as the hearing of the appeal, allow the appeal and reduce the sentence to one of 4 years imprisonment.

Representation:

Mr Giles Surman (M/s Augustine C.Y. Tong & Co) for Applicant

Mr P. Cantrill, S.C.C. (Crown Prosecutor) for Crown/Respondent