HKSAR v. Pak Wan Lung

CACC000573/1998

CACC 573/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 573 OF 1998

(ON APPEAL FROM DCCC NO. 759 OF 1998)

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Coram: Hon Nazareth, V-P, Liu & Mayo, JJA in Court

Date of Hearing: 20 April 1999

Date of Judgment: 20 April 1999

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J U D G M E N T

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Liu JA:

1. The applicant faced four charges before His Honour Judge Wright in the District Court. Two charges were preferred on the using of a forged travel document, one for coming in and the other for going out of Hong Kong a few days later. He was also charged with making a false representation to an Immigration Officer on the two occasions on which the forged travel document was used. He pleaded guilty to the charges. He was sentenced to 2 years' imprisonment for one charge of using a forged travel document; 2 years for the other charge of using a forged travel document; 8 months each for making a false representation. All sentences were ordered to be served concurrently, resulting in a total term of imprisonment of 2 years. The applicant feels aggrieved and seeks leave to appeal against the 2-year sentences.

2. The District Judge adopted a starting point of 27 months for the two "forged travel document" charges. The charges were of a similar nature. For the latter offence the applicant was given an additional 9-month imprisonment, making it a total of 36 months. He gave the applicant a one-third discount for plea. Therefore, the 36-month - 3-year starting point was reduced to a term of 2 years.

3. The applicant's concern is in the 2-year sentences for the two charges of using a forged travel document. The judge was told of his agreement to give evidence against his co-accused. The judge saw fit to sentence the applicant before he had an opportunity of doing so, but apparently, the District Judge allowed no discount for his offer to render assistance. In due course, the applicant gave evidence against his co-accused for the prosecution but nevertheless his co-accused was acquitted after trial.

4. On behalf of the applicant, Mr Yu fairly draws our attention to various decisions which seem to be divided between adopting a starting point of 27 months and adopting one of 18 months for a like charge.

5. Running through them very quickly: in R. v. Yu Wing-wut, Cr App No. 346/1984, the judgment of which was given on 6 September 1984, the Court of Appeal adopted a starting point of 27 months. In R. v. Chan Shing Leong, Magistracy Appeal No. 1149/1996, Leonard, J followed the 27-month starting point. In R. v. Mui Man Chiu, Magistracy Appeal No. 1160/1996, Sears, J was of the view that 27-month was excessive and he selected a starting point of 18 months. Apparently in 1990, in R. v. Tong Hung Hong, Magistracy Appeal No. 891/1990, Bewley, J also took 18 months for the starting point. In this case, His Honour Judge Wright adopted "27 months" as the starting point. Some weeks later in HKSAR v. Chu Man, Magistracy Appeal No. 1012/1998, Stock, J also went for "18 months" as a starting point. Granted that the Court of Appeal in Yu Wing-wut, supra did not purport to lay down any sentencing guideline, at least one judge of the Court of First Instance observed that it was too high. However, none of the judges who took a different line gave any reasons for the departure from the view of the Court of Appeal. Therefore, despite the decisions drawn to our attention, we can find no justification for not selecting also a starting point of 27 months. However, the two "using a forged travel document" offences were only days apart. We accept the submission of Mr Yu that the sentences for these charges should run concurrently.

6. There was no evidence led on the possibility or nature of risk that the applicant had undertaken in offering to and later giving evidence against his co-accused. He did offer and give evidence against him. His evidence so given is not claimed to be unhelpful. Some discount should have been given by the judge for his then offer to assist the authority. But it does not really matter before us today because he has given evidence against his co-accused. It is right, in the circumstances, that he should be given an overall additional 10% discount. For his plea, he has earned a one-third discount. In the round, we would allow an 11-month discount of his 27-month starting point for both charges of using a forged travel document. He should serve, therefore, 16 months for each of the two charges and the sentences are to run concurrently. All the sentences are also to be served concurrently with the result that he is to serve 16 months instead of 24 months. We allow his application, grant leave, treat his application for leave as the appeal proper, allow the appeal and set aside the sentences imposed upon him for these two charges of using a forged travel document. We substitute a sentence of 16 months for each and order as we have proposed.

Representation:

Mr P S Chapman, SADPP (DPP) for Respondent.

Mr Selwyn Yu assigned by DLA for Applicant.