HKSAR v. Kumpun Saksith

CACC 245/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 245 OF 2008

(ON APPEAL FROM DCCC NO. 322 of 2008)

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BETWEEN

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Before: Hon Stuart-Moore VP and Barnes J

Date of Hearing: 10 March 2009

Date of Judgment: 10 March 2009

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J U D G M E N T

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

Background

1.On 24 June 2008, the appellant (D2 in the court below) pleaded guilty before Deputy District Judge C P Pang to three charges (charges 4, 5 and 6) of theft and was sentenced to a total of 2 years’ imprisonment.  He was given leave to appeal by the single judge on 3 December 2008 and it is rightly conceded by Ms Vinci Lam, for the respondent, that this appeal should be allowed because of circumstances which have arisen since sentence was passed.

2.We can take the basic facts very briefly.  The appellant, aged 33 at the time of sentencing, had what the judge correctly described as a “longstanding criminal record, mostly involving dishonesty”.  Indeed, at the time of sentencing, the appellant was still serving a 4-month sentence, imposed on 9 April 2008, for an earlier theft (by shoplifting). He had a total of fifteen previous convictions.

3.The three thefts admitted by the appellant in the instant case were all committed in the context of shoplifting, accurately and concisely described by the judge in these terms:

“12.  The offences committed by D2 are obviously premeditated and well organized. While other members of the gang distracted the attention of the cashier, D2 swiftly removed the stolen goods from the shop. In my view, the offences were committed in a professional manner. While there is no evidence to suggest that D2 is the mastermind of the offences, in the sense that he planned and organized the crime, his participation is active and his role cannot be said to be minor. He was the person who took the stolen goods out of the shop. Even accepting that he did not organize the crime and he took no share in the proceeds, still the crimes cannot succeed without his participation.

13.  Although the value of the stolen goods [$5,964.50] was not very substantial, the value cannot be said to be small. Moreover, the gravity of the offences is the organized nature of the crime. Such crime must be deterred and D2 must also be deterred from committing similar crime in the future.” 

4.The judge took a 15-month starting point for each of the offences, committed in November 2007 and in January and February 2008, respectively.  Each sentence was reduced to 10 months to reflect the pleas of guilty and, with totality in mind, the judge ordered that 7 months on charges 5 and 6 should in each case run consecutively to the sentence on charge 4, making 24 months in all.  The judge also ordered that this term of imprisonment should run consecutively to the sentence the appellant was then serving.

The appeal

5.Mr Wilson Chan, for the appellant, advanced two grounds of appeal.

6.In his 1^st ground, Mr Chan submitted that, while the individual starting points for sentence were not open to criticism, the totality of sentence (from a notional starting point of 3 years’ imprisonment) was manifestly excessive having regard, in particular, to the 28-month sentence imposed on Choi Chin-wang (D1) who ultimately pleaded guilty to five charges, two of which (charges 5 and 6) were committed jointly with the appellant.

7.We do not consider that there was merit in this argument.  The appellant’s case was different to D1’s in a number of ways, not least that he had almost double the number of previous convictions.  It is apparent also that there was no disparity in sentence as D1 received a sentence which was 4 months longer than the appellant’s overall sentence.  The appellant was also seven years older than D1.

8.The 2^nd ground, on the other hand, must obviously succeed.  This is so because of the appellant’s assistance to the prosecution in relation to D1’s case.  In short, the appellant provided the prosecution with a statement which, it seems, ultimately led to D1 pleading guilty and we are told that the appellant was “at all material times” prepared to testify against D1.

9.In such circumstances, Mr Chan invited us to consider increasing the appellant’s discount to 40%.  Ms Lam conceded that this would be appropriate and we agree.

10.We should add that this case provides a clear example where the sentencing of one defendant, for offences involving joint enterprise with a co-defendant, should not have been split, leaving each defendant to be sentenced months apart.  The judge decided to sentence the appellant, knowing that he was intending to assist the prosecution against D1 and in spite of an application by counsel then appearing on his behalf for an adjournment, because of the “long waiting time” involved.  With respect, this approach was wrong.  A defendant who is likely to give assistance to the authorities, should be sentenced as a general rule of practice after he has done so.  He can then be sentenced in the light of the assistance he has given.  In addition, it is contrary to well-established practice to split co-defendants for the purposes of sentencing unless this cannot be avoided.  A delay of three months before D1’s trial was plainly not a good reason for passing sentence on the appellant at the stage this was done.  If the judge was concerned that, having pleaded guilty, the appellant should not be given bail pending sentence, this was a matter which could have been dealt with by a simple refusal of bail pending sentence.

Conclusion

11.The appeal is allowed.  The overall sentence of 2 years’ imprisonment is quashed.  Adopting the same starting point that the judge took for each offence, we substitute sentences of 9 months’ imprisonment on each charge to reflect a discount of 40%.  6 months of the sentence on charges 5 and 6 will run consecutively to each other and to the sentence on charge 4, making a total of 21 months’ imprisonment.  We should add that this also reflects a discount of just over 40% from a notional starting point of 3 years’ imprisonment for the three offences.

Ms Vinci Lam, SPP, of the Department of Justice, for the Respondent.

Mr Chan Ka Shun, Wilson, instructed by Director of Legal Aid, for the Appellant.