HKSAR v. Lau Tai Heung

CACC000054/1999

CACC 54/1999

HEADNOTE

Criminal Law - Sentencing - Discount for plea of guilty in District Court. Where the aggregate of sentences after individual discount is about the same or in excess of the jurisdictional limit of 7 years, a meaningful discount from that limit should be given (HKSAR v Li Yan CrimApp No. 84 of 1998).

Adoption of plainly inadequate sentences simply to achieve the desired totality upon a consecutive basis criticised. The desired totality could be acceptably achieved by sentences of the appropriate severity made wholly or partly concurrent.

CACC 54/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 54 OF 1999

(ON APPEAL FROM 1249 AND 1397 OF 1998)

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Coram: Hon Nazareth V-P, Stuart Moore V-P and Nguyen J in Court

Date of Hearing: 6 July 1999

Date of delivery of Judgment: 22 July 1999

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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, Lau Tai-heung, appeared before His Honour Judge Wilson as the 1st defendant together with a co-accused, the 2nd defendant, on 15 January 1999 on ten counts. One of these counts was joint, i.e. count 2, and the remainder in respect of one or the other defendant. The applicant was charged on the following counts: Count 1, robbery (with handling the property stolen in the robbery as the alternative in count 6). Count 2, robbery jointly with D2. Count 4 robbery (with handling in the alternative as count 7). Count 8 remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully. Count 10, theft. He was found guilty after trial on count 2 and pleaded guilty on counts 8 and 10. He was sentenced to imprisonment for 5 years on count 2, 8 months on count 8 and 16 months on count 10, all to run consecutively, making a total of 7 years.

2. D2 was found guilty after trial of robbery (count 2) jointly with D1, attempted robbery (count 3), robbery (count 5) and remaining illegally in Hong Kong (count 9).

3. D1 now seeks leave to appeal against conviction and sentence.

4. The offences were all committed on or about 28 or 29 September in the New Territories, Kowloon, and on Hong Kong Island. The pattern was generally similar, individual pedestrians being waylaid by two men. A knife was brandished on occasion by D2, or the victims were assaulted with kicks and fists, and their belongings taken, cash, bags, wallets and their contents, also portable phones and batteries.

5. The last offence of robbery, which was the subject of count 5, occurred about 20.35 hours on 29 September inside the subway of Morrison Hill Road, outside the Hong Kong Jockey Club. On the following day, 30 September, about 6.45 pm the defendants were arrested under a stand at the Jockey Club Race Course in Happy Valley. In the words of the judge, the place concerned -

"is apparently accessible to the public at any time but it is usually deserted at times other than race meetings. Scattered about the defendant were numerous items stolen from PW1 [the victim in count 2] which he subsequently identified, and numerous items stolen from PW3 [the victim in count 5] which he too identified.

PW3's bag was in a nearby rubbish bin. Among the items with D1 was cash $2,040, two mobile phones with batteries, and a third mobile phone battery (Exhibit P78). The latter was stolen from PW1.

D2 had with him HK$3,370.50 in cash and Renminbi 81. (the latter was identified by PW3 as very similar to what had been robbed from him.)

Although this space where the defendants were arrested is accessible, there was no one else about at the time. Many items were in and on the Information Counter of the Jockey Club and two rubbish bins which were the order of 40 feet away from the defendants. A pair of freshly-washed socks were drying under a ceiling fan. There was a razor, a comb, toothbrushes and tooth paste, a bottle of hair mousse and both defendants had heavily gelled hair. There were seats and tables which on race days are thronged but on non-race days are deserted. The defendants appeared to have set up a temporary resting area at that vicinity.

D1 admitted being an illegal immigrant. D2 made a cautioned statement in which he denied robbery and further claimed to have joined a tour ... on 29 September to visit Hong Kong as a tourist."

D1 elected not to give evidence and called no witnesses.

6. For D1, Ms Corinne Remedios, who did not appear below, takes as her first ground, ground 4 of the applicant's perfected grounds of appeal against conviction:

"4. The guilty verdict of robbery in respect of the 2nd count is inconsistent with the conviction of the applicant of theft [subject matter of count 10] in that

(a) the prosecution accepted that the applicant came by possession of the number of items contained in the bag in his possession in the course of the theft of the bag (count 10) and not robbery; and

(b) the items contained in the bag included inter alia Exhibit P78 which was the Ericsson mobile battery identified to belong to [PW1], the victim of the said robbery (subject matter of count 2)."

7. To understand this ground it is necessary to explain the following facts. When the defendants were arrested, D1 was carrying some sort of bag. It had in it a number of items including an Ericsson phone battery which came to be marked Exhibit P78. As mentioned, it was positively identified by PW1 as having been stolen from him in the robbery that was the subject of count 2. Count 2 was framed in the following terms:

"Robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210.

LAU Tai-heung and TIN Yee [D2], on or about the 28th day of September, 1998, at a bus stop on Jordon Road near Canton Road, in Hong Kong, robbed WU Wai-lun [PW1] of one mobile phone with a cover, and battery, ..., a green rucksack, ... and cash $220 Hong Kong currency."

(Only those items specified which are relevant have been included)

8. It is also necessary to set out charge 10:

"Theft, contrary to sections 2 and 9 of the Theft Ordinance, Cap. 210.

LAU Tai-heung, on or about the 29th day of September, 1998, at the waterfront near Kowloon Pier, Tsimshatsui, stole two Knapsacks belonging to a person or persons unknown and containing inter alia one Mitsubishi GSM mobile phone belonging to LEUNG Chuk-por, one Hutchison mobile phone and a Kawanchi black wallet belonging to LEE Hoi-tin, and a 'Cervo' black wallet containing HK$2040 belonging to a person or persons unknown."

9. Reverting to perfected ground 4, the list of exhibits helpfully separates the different exhibits. It can be seen that the knapsack or bag, which appears to have been on D1's person or carried by him, contained a number of items that were taken from different victims and therefore relate to different offences. One of the items found in the bag, i.e. Exhibit P78, the Ericsson mobile battery, was identified by PW1 as his property and was therefore the subject matter of count 2. But even if the prosecution did accept that the applicant came into possession of a number of other items contained in the bag in the course of the theft of the bag, i.e. the subject of count 10, it does not seem to us to follow that conviction of the robbery in count 2 is inconsistent with the conviction of the theft charge in count 10. The battery concerned was specified only in count 2 and not in count 10. Ms Remedios submits that by accepting in count 10 that the contents of the bag in the applicant's possession were the product of a theft (and not the count 2 robbery), the prosecution recognised an alternative explanation for possession of the stolen items, inconsistent with the applicant being the original robber. A further inference, she says, from the possession of such items could have been that the applicant came by them by way of the theft and not the robbery. This would involve the battery having been stolen by some other thieves and then stolen again by D2 in the count 10 theft. That is a possibility that is conceivable but, it has to be said, so far-fetched as to be unlikely to raise even a shadow of a doubt. Likewise, the possibility that D1 obtained the battery and other items from D2 is not inconsistent with D1's sole or joint possession. We do not think that speculation as to how the stolen goods came to be in D1's possession is of assistance, given PW1's positive identification of the battery. That one fact and D1's possession of the battery less than 3 days after the robbery entitled the judge to treat D1 as being in recent possession of that item. We will return to the validity of his conclusion upon the latter.

10. The remaining grounds in Ms Remedios's submissions can be conveniently considered in the helpful way in which she drew them together. In convicting the applicant the judge said this:

"D1 was likewise in joint recent possession just five days after the robbery of a large quantity of objects stolen in the robbery; in fact, most of the objects stolen in that robbery. D1 and D2 were found together with all these stolen objects in an area which was for the time being secluded and remote and in circumstances suggesting they were in close association.

I have already found that D2 was identified as being one of the robbers. Although there is no direct identification of D1 by the victim, I am satisfied it is an irresistible inference that he was the other robber and I find D1 guilty of charge 2."

11. It is convenient to return to the circumstances in which the applicant and D2 were found and arrested, which we have already set out in the way the judge recorded them.

12. Ms Remedios submits that the judge erred in concluding that the applicant was in joint possession of stolen property found in the vicinity of both defendants and wrongly relied upon "joint recent possession". However, given the circumstances as the judge carefully set them out including their then secluded temporary resting area, we find the judge was entitled to reach the conclusion that the applicant was in joint possession of the numerous stolen items scattered about. However, the appeal relates to the robbery offence charged in count 2 and in that respect the evidence clearly shows that the mobile phone battery, Exhibit P78, was in the possession of the applicant less than 3 days after it was stolen in the count 2 robbery. As stated in paragraph 21-126 of the 1999 Edition of Archbold, it is generally other additional evidence of the circumstances that justifies a finding of guilt on the basis of recent possession. Here it is to be found in the circumstances detailed by the judge, which in our view entitled the judge to come to the conclusion that D1 was the other man in the count 2 robbery.

13. It is also submitted that there was no direct or indirect identification of the applicant as a culprit. Indeed there was not. However, the applicant's recent possession of the battery, in the foregoing context, was sufficient to enable the judge to draw the necessary inference of the applicant's guilt. That is also the answer to the submission that to convict the applicant on the basis of his being in the company of the 2nd defendant is effectively to render him guilty by association after the event. In our view, that is plainly not what happened.

14. Needless to say, we reject Ms Remedios's ultimate submission that the conviction was unsafe and unsatisfactory. We accordingly refuse leave to appeal against conviction.

15. We turn then to the application for leave to appeal against sentence.

16. In sentencing the applicant, this is what the judge said:

"He is 18 years of age and has a clear record in Hong Kong. The facts on charge 2 were that the two defendants, D2 displaying a knife, menaced a lone pedestrian in the early hours of the morning. They ran off with his rucksack and possessions after a brief struggle in which the victim received minor injuries.

The facts on charge 10 were that D1 was arrested in possession of a rucksack containing stolen items including two mobile telephones, a wallet and $2,040 in cash. He admitted stealing the rucksack and contents.

I bear in mind Dl's youth and clear record in Hong Kong. I select starting points of 6 years (charge 2), 15 months (charge 8) and 2 years (charge 10). I discount the latter two by the usual one-third for the pleas of guilty which still results in a total sentence somewhat in excess of my maximum jurisdiction. I will therefore adjust my proposed sentences downwards to accord with my jurisdictional limits.

In the result, I impose sentences on D1 as follows: charge 2: 5 years' imprisonment; charge 8, 8 months' imprisonment; charge 10, 16 months' imprisonment. All those sentences to be consecutive. The effective total is 7 years' imprisonment."

17. Ms Remedios points to the sentences imposed upon D2 who was convicted after trial of two robberies, one attempted robbery and one count of remaining in Hong Kong:

(a) Second count - robbery (2 1/2 years);

(b) Third count - attempted robbery (1 year);

(c) Fifth count - robbery (2 1/2 years);

(d) Ninth count - remaining in Hong Kong (1 year).

That was in total 7 years, exactly the same sentence as the applicant.

18. Ms Remedios submits that the applicant would justifiably have a sense of grievance. The basis for intervention, she submits, is this: "When sentences are so disparate that right thinking of members of the public are likely to say 'there is something wrong here', the court will consider interfering, not because justice has not been done to a particular person, but because what has been done offends against the appearance of justice" (per Lawton LJ in R v Potter [1977] CrimLR 112, 113).

19. Ms Remedios points out that the 2nd defendant was an older man, who did not plead to any of the offences and was found guilty of three offences relating to robbery, yet received the same sentence, i.e. the maximum the District Court could impose.

20. We accept that in ordinary circumstances the 2nd defendant could have been expected to receive a higher sentence. But these were not ordinary circumstances. What the judge imposed was the maximum the District Court could impose. Moreover, we do not accept that the disparity is such that it offends against the appearance of justice. Nor are we persuaded that because the 2nd defendant received a somewhat inadequate sentence, this wrong should be repeated in the case of the 1st defendant.

21. Ms Remedios also submits that a reduction from the 7 year maximum should have been made to give credit for the pleas of guilty to the 8th and 10th counts. She refers to the following authorities: R v Ho Sik Yin [1991]2 HKC 212; 213C-D where it was held that:

"In the District Court, when the starting point for sentence is seven years' imprisonment, a discount for a plea of guilty must be made from the jurisdictional limit of seven years, not from the starting point which the judge considers would have been appropriate had the case been heard in the High Court."

In The Queen v Kong Kwong Por CrimApp No 657 of 1996 CA unreported, it was held that:

" ... where a judge in the District Court thinks the proper starting point is above his maximum powers, he may take that as a starting point and then make an appropriate deduction from that figure. It is only in circumstances where the offences are so serious that having made the deduction for plea and the sentence is still at or above 7 years that the judge must then make a further deduction. This is on the basis that an accused person must always have some credit for pleading guilty. So a deduction from 7 years in those circumstances will be appropriate."

Per Mortimer JA.

22. In HKSAR v Lo Po Tak CrimApp No 608 of 1997 CA, unreported, Leong JA said this:

"On the ground that reduction for pleas of guilty should be made from the maximum of the deputy district judge's jurisdictional limit and not from the starting point adopted by him which was in excess of the limit of 7 years, the authorities are whilst the judge may decide if he thinks fit, a starting point beyond the jurisdictional limit, he is bound to give a reduction for pleas of guilty and such reduction should be made from the maximum of 7 years (R v HOK Sik-yin; A.G. v SHEK Wai-yip)."

23. Finally, in HKSAR v Li Yan CrimApp No 84 of 1998, the court addressed the question whether in those cases where an appropriate sentence after discount is 7 years or more, policy and justice require a further one-third discount from the 7 years maximum, or whether, some lesser discount is appropriate. The court held that the several cases it cited, including those mentioned above, demonstrate that:

"... it is self-evident that justice requires a further meaningful discount should be given from the maximum of 7 years after plea in those cases which would attract 7 years or more as the proper sentence which the court ought to impose. This is to give the accused some benefit for his plea of guilty.

But, neither policy nor justice require that a 1/3 discount for a plea should be given from the maximum of 7 years regardless of the proper starting point. In cases where the appropriate sentence to be imposed after discount is 7 years or more, a meaningful discount from 7 years should be given in order to give some benefit for the plea. The same applies if the appropriate sentence is so near 7 years that the discount is not meaningful. As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than 1 year be so considered." Per Mortimer V-P.

We would respectfully agree.

24. However, Miss Mary Sin, for the respondent, points out that the starting point of the sentence on each count did not exceed 7 years. She submits that discount as appropriate for each count was properly given from the respective starting points rather than the maximum of the District Court's jurisdiction. We have no hesitation in rejecting that submission. It is contrary to the foregoing dicta and would here eliminate the incentive given for the considerable benefits that the courts recognise flow from pleas of guilty.

25. Reverting to the circumstances before us, the guideline sentence for remaining in Hong Kong is 15 months after plea; the applicant whose sentence was reduced from 15 to 8 months accordingly received a discount well in excess of a third. As to the 10th count, he likewise received a considerable discount i.e. from 2 years to 16 months. In the circumstances we think that a meaningful discount from the 7 year maximum would be 8 months, and we achieve this by making the 8-month sentence on the 8th count concurrent with the other two sentences.

26. Accordingly we grant leave to appeal, treat the application as the appeal, allow it, set aside the order that the 8-month sentence on the 8th count should run consecutively and order it to run concurrently. This will reduce his total sentence from 7 years to 6 years and 4 months.

27. Before we leave the matter, we have to refer to the 21/2-year sentences imposed on D2 in respect of the 2nd and 5th counts. These are plainly grossly inadequate where the minimum under the Mo Kwong Sang tariff would be 5 years. The judge wished to achieve a total of 7 years. An acceptable way of doing so would have been to make the sentences or some of them wholly or partly concurrent. Moreover, had D2 appealed and succeeded on one of the robbery charges, he would have been left to serve a sentence that was wholly inadequate in respect of the other.

Representation:

Miss Mary Sin, SADPP for Director of Public Prosecutions

Ms Corinne Remedios (DLA) for the Applicant