HKSAR v. Yung Man Chun

CACC 281/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 281 OF 2006

(ON APPEAL FROM DCCC 117 OF 2006)

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BETWEEN

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Before: Hon Stuart-Moore VP and Beeson J in Court

Date of Hearing: 13 June 2007

Date of Judgment Handed Down: 21 June 2007

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J U D G M E N T

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Beeson J (Giving the judgment of the Court)

1.The Applicant pleaded guilty to one charge of Conspiracy to Rob, contrary to section 10 of the Theft Ordinance, Cap. 210 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.  Deputy District Judge S.M. Sham took 5 years as the starting point for sentence and reduced it to 45 months for the plea.  He refused to give the Applicant the usual ⅓ discount for his guilty plea because the Applicant had asked the court to conduct a Newton enquiry into the evidence relating to the incident.  The Applicant’s attempt to convince the court of his conflicting version of events was unsuccessful.  The judge took the view that the court’s time had been used and thus the Applicant was not entitled to a full ⅓ discount. 

2.The Applicant appealed against sentence.  The Perfected Grounds of Appeal in essence were :

(1)	This was not a case where the judge was required to hold a Newton hearing because :
	(a)	the account given by the Applicant, both in his interview to the police and in mitigation, even if true, would make no significant difference to the length of the appropriate sentence.
	(b)	the Applicant had pleaded guilty to the charge of Conspiracy to Rob.  His account showing he may have withdrawn from the agreement was equivocal and belated.
(2)	The Applicant’s account was already known to the Judge prior to his decision to hold a Newton hearing, thus no purpose was served by holding such a hearing.
(3)	To deprive the Applicant of the usual ⅓ discount for plea and reduce it to ¼, because of his taking up court time with a Newton hearing, resulted in a sentence which could be described as ‘manifestly excessive’ to the extent of 5 months.

Factual Background

3.The Applicant and his co-defendant(D1) were arrested by the police at 4 o’clock in the morning after they were seen hanging around a convenience store.  When questioned the Applicant told the police he and his friend had intended to rob somebody.  The plan was that D1 would use a knife to threaten a victim and he would act as a lookout.  He said that originally he had intended to snatch a mobile phone, but had been encouraged by D1 to engage in robbery.

4.In mitigation, his counsel submitted that although the Applicant had planned to go out with D1 to rob someone, at the scene he became scared and had stopped his companion from robbing several passers-by.  He submitted further that by the time he was stopped by the police, the Applicant had already given up his plan to rob.  Because of this submission, which was not supported by the facts agreed by the Applicant, a Newton hearing was held.

5.The Applicant in giving evidence, agreed that when arrested he told the police that he and his companion had intended to look for passers-by to rob and he was to act as a lookout.  He agreed that he had never mentioned stopping his companion from robbing some passers-by earlier on, nor had he told D1 that he wanted to end his own involvement. 

6.His initial admission recorded in a police notebook, Exhibit P1 did not mention any attempt to withdraw from the robbery plan.  In a later Video-Interview, Exhibit P2, he said, at item 315 : 

“But there were a few target persons Chan Siu-chung wanted to go over to do, that means, what he was going to rob him (sic).  I did go up to stop him.”

7.When he was questioned further on this point, he said at item 321 Exhibit P2 :

“After that, it’s because of this, so we walked around in Wan Tau Tong Estate for so many times, we were unable to find any passers-by, then went to Tai Po Market after that.”

8.The Applicant’s evidence was that he wanted to stall his companion and he planned, on reaching the market, to tell D1 he would withdraw altogether.  When questioned by the prosecutor, the Applicant agreed that he went to the market to look for a victim to rob so that he could have money to buy drugs.  In cross-examination by counsel for D1, it was put to the Applicant that at no point had he ever intimated to D1 that he should stop robbing people, or that he wanted to withdraw from their plan.  The Applicant agreed that was the case.  Counsel for D1 asked specifically if the Applicant had understood the question put to him; his answer was that he did.

9.Having heard this evidence and counsel’s submissions, the judge had no difficulty in rejecting the Applicant’s claim he had stopped D1 from robbing various victims.  Nor did he believe the Applicant had withdrawn from the criminal enterprise.  The judge noted too that the Applicant’s conduct upon arrest was not consistent with this particular claim.

10.Counsel for the Applicant submitted that the judge was wrong in principle in reducing the ⅓ discount for what was a timely plea of guilty.  Further, he was wrong to reduce the discount because the Applicant had asked for an enquiry to be held.  Although the Applicant’s evidence was rejected, the time expended on the enquiry was very short and even if the judge had accepted the evidence the starting point for sentence would not have been affected significantly.

11.In the absence of good reason, where a timely plea has been entered, a defendant is entitled to a full one-third discount.  Such discount is granted not only in recognition of remorse but also to encourage as many offenders as possible to plead guilty to the crimes they have committed with the subsequent saving of court time and expense.  It is accepted that there are circumstances in which it might be inappropriate, wrong, or unjust to give the full discount.

12.The real question on this appeal is whether the judge was justified in reducing the discount for plea from ⅓ to ¼, having rejected the claims made by the Applicant.  In HKSAR v Ting Chiu & Another [2003] 3 HKLRD 378 where a Newton enquiry was conducted on the question of whether a knife had been produced, it was held that as its resolution was in the defendant’s favour he had been justified in raising the matter and should receive the full discount.  However the court commented that had it been otherwise there might have been a basis for reducing the normal discount.

13.The Applicant claimed that he had stopped his co-defendant from robbing several possible victims and that he had abandoned his plan to rob by the time of his arrest.  If he had succeeded in establishing those matters before the judge in mitigation it may well have resulted in a reduced starting point being adopted and/or in his sentence being significantly lower than that passed on his co-defendant.

14.We accept that the time expended on the Newton enquiry was not lengthy.  Mr Cheung Yiu-leung of counsel who appeared for the Applicant today has helpfully checked the court record which shows that 46 minutes were spent on this evidence.  In his Reasons for Sentence the judge commented that “time has been used”.  Use, or waste, of time is not the sole consideration.  What the judge might have added was that the Applicant’s attempt to change the basis of his admissions detracted somewhat from the remorse he claimed as a mitigating factor.

15.Where the defendant’s version is rejected, the sentencer may properly withhold some part of the discount which the defendant would normally receive in recognition of his plea of guilty.  Credit for the plea is “to some extent offset by the conduct of the appellant in taking a stance which in the end did not commend itself to the court” HKSAR v Tong Ki-ching (unrep. Cr App. 481/2001).  [para 5-11 Hong Kong Archbold]

16.The Applicant’s admission on arrest and his Video Interview thereafter, contain no clear reference to, or support for, the account given at the Newton enquiry and cross-examination established that no indication was ever given to D1 that the Applicant was about to, or had abandoned the robbery plan.  Nor did D1 agree he had been prevented or discouraged by the Applicant from robbing several possible targets.  It is unsurprising that the judge dismissed the Applicant’s evidence as not credible.

17.Having challenged the facts without success the Applicant cannot complain now because the court acceded to the defence request for a Newton enquiry.  The judge was entitled to conclude that the Applicant had lost the full benefit of the “remorse” shown by his guilty plea.  He did not refuse to give the Applicant any credit at all, but gave a lower discount of ¼.

18.In our view if the judge had given a discount of ¹/₅ we would not have interfered with this sentence.  The sentence of 3 years and 9 months’ imprisonment is confirmed.

Ms Mary Sin, SGC of the Department of Justice, for the Respondent

Mr Cheung Yiu Leung, instructed by Messrs Lo Chan & Leung Co, for the Applicant