HKSAR v. Liu Lin Feng

CACC206/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 206 OF 2011

(ON APPEAL FROM DCCC NO. 135 OF 2011)

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BETWEEN

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Before: Hon Hartmann JA, Beeson J and Barnes J in Court

Date of Hearing: 30 April 2012

Date of Judgment: 30 April 2012

Date of Handing Down Reasons for Judgment: 3 May 2012

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the reasons for judgment of the Court):

1.On 21 February 2012, we dismissed the applicant’s application for leave to appeal against sentence, our reasons being given in a judgment dated 28 February 2012. Thereafter the applicant sought leave by way of notice of motion to appeal to the Court of Final Appeal. He did so on the basis that the single issue raised by him was one of great and general importance. The issue was framed in the following terms:

“Should an accused who voluntarily admits additional offences for which he has not been arrested receive sentencing credit for this, either by way of a reduced starting point or by specific reduction, rather than only subsumption within the ‘one third’ guilty plea discount?”

2.On 30 April 2012, having heard the parties, we dismissed the application.  We said we would give our reasons later and do so now.

3.The issue framed on behalf of the applicant as one of great and general importance arises out of the following facts.

4.On 13 January 2011, the applicant came to Hong Kong from the Mainland.  On that same day in the early evening he boarded an MTR train.  He was with two companions.  The activities of the three men attracted the attention of police officers in plain clothes who were on the same train.

5.Working in conjunction with his two companions, the applicant was seen pickpocketing an iPhone from a passenger who was about to alight from the train as it arrived at a station.  The applicant was pursued by the police and, after a brief struggle on the station platform, was found to have in his possession not only the iPhone just stolen but a second iPhone with its SIM card removed.  When asked about this second iPhone, the applicant admitted that he had stolen it earlier in the day within the precincts of the MTR.

6.On 5 May 2011, the applicant pleaded guilty in the District Court to two charges of theft (by means of pickpocketing) under s.9 of the Theft Ordinance, Cap 210, and one charge of resisting police officers in the execution of their duty under s.63 of the Police Force Ordinance, Cap 323.  The applicant was sentenced to a total of 33 months’ imprisonment.

7.The first charge of theft to which the applicant pleaded guilty related to the theft of the iPhone with its SIM card removed.  It is the sentence imposed in respect of that charge which is the subject of the notice of motion.

8.In respect of that charge, taking into account certain aggravating features, the judge at first instance determined that an appropriate sentence would be one of 21 months’ imprisonment.  On the basis of the applicant’s plea of guilty a one-third reduction of sentence was granted, reducing the sentence to one of 14 months’ imprisonment.  The judge found no basis for a further reduction in sentence.

9.Before us, it was submitted that the applicant’s immediate admission that he had stolen the iPhone even though the police at that stage were doing no more than making enquiries as to his possession of it should have resulted in a discount over and above the standard one-third.  We rejected that submission.  It was renewed by way of the notice of motion to appeal to the Court of Final Appeal.

10.As to the issue, we do not agree that it involves a question of law of great and general importance.  It is well settled that in assessing sentence a judge may grant a discount greater than the standard one-third. Each case depends on its own circumstances.  It is, for example, well settled that where an offender surrenders voluntarily to the police and admits an offence which could not otherwise be proved against him, he may be allowed a greater reduction of sentence than would be appropriate in the normal case.

11.In the present case, the applicant, having been caught red-handed working with two accomplices in order to steal an iPhone from an unsuspecting MTR passenger, was found to be in possession of a second iPhone with its SIM card removed.  Absent an admission that the iPhone had been stolen, the circumstances of its discovery were bound to lead the police to conduct an enquiry, for example, by checking the registration details of the iPhone and the data saved to the iPhone itself rather than the missing SIM card. On its facts, this was not therefore a case in which the offender had admitted an offence which could not otherwise be proved against him.  This was no more than the admission of an offence at the first available opportunity which was capable of being proved against the applicant and which the applicant must have appreciated would, if necessary, be so proved.

12.In the circumstances, this was a case which involved the application of settled sentencing principles to the relevant facts.  No novel issue, certainly no issue of great and general importance, arose.

Mr Martin Hui, SADPP of the Department of Justice, for the Respondent

Mr James H M McGowan, instructed by C.S. Chan & Co., assigned by Director of Legal Aid, for the Applicant