HKSAR v. Chui Kwok Hin Wilson

[ENGLISH TRANSLATION – 英譯本]

CACC 330/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 330 OF 2013

(ON APPEAL FROM HCCC NO. 364 OF 2013)

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BETWEEN

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JUDGMENT

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Hon Cheung JA (giving the judgment of the Court):

1.The Applicant and the 2^nd defendant of the present case were jointly charged with one count of “conspiracy to steal”, contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong and sections 159A and 159C of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. The Applicant was sentenced to 16 months’ imprisonment. He now seeks leave to appeal the sentence.  

Facts

2.The facts revealed that between 2010 and 2011, the Applicant and the 2^nd defendant worked for “Lick Sang Rice Limited” (“Lick Sang”) as a warehouse attendant and a driver respectively. Upon discovering that the quantity of white rice stored in the warehouse did not tally with the entries in the computer record, “Lick Sang” carried out an investigation. The Applicant admitted to “Lick Sang” on his own initiative that he conspired with the 2^nd defendant to steal rice. The 2^nd defendant would load more rice than what was ordered by customers onto the truck. Initially, he asked the Applicant to feign ignorance. Subsequently, he gave the Applicant a share of $10 per pack, which sum was eventually increased to as high as $30 to $40 per pack. On the other hand, the 2^nd defendant would sell the stolen white rice to shops at a lower price to make a profit. The Applicant surrendered himself to the police and handed over $152,000 being the total sum he had received from the 2^nd defendant. Apart from pleading guilty, he also gave evidence against the 2^nd defendant in court as a prosecution witness. He admitted that he had in fact already spent $40,000 to $50,000.

3.District Judge Yiu adopted 2½ years’ imprisonment as the starting point. As the Applicant had pleaded guilty, handed over the stolen money on his own initiative and given evidence against the 2^nd defendant in court, the Judge sentenced him to 16 months’ imprisonment.

Grounds of appeal

4.Mr. Wong, Counsel for the Applicant, contends that the Judge should have adopted a lower starting point to reflect the difference between the Applicant’s culpability and that of the 2^nd defendant. He submits that the 2^nd defendant instigated the present offence and played a major role at the material times, but the Judge also adopted 2½ years’ imprisonment as the starting point in respect of the 2^nd defendant. The 2^nd defendant pleaded not guilty and was convicted after trial. As he had handed over some of the stolen money, the Judge sentenced him to 2 years and 3 months’ imprisonment. Taking into account the fact that the offence involved stolen money amounting to $2,786,000, we consider it appropriate for the Judge to adopt, as he did, 2½ years’ imprisonment as the starting point in respect of the Applicant. The “starting point” (in Chinese量刑基準, or量刑起點as it is commonly known) reflects the appropriate sentence for a first offender who has been convicted after trial of a particular type of offence or charge, absent any aggravating or mitigating factor specific to the case. See HKSAR v Ta Dinh Son also known as Bui Trong Khoai and Ngo Van Thanh CACC 348/2013.          

5.Mr. Wong also argues that, on top of the one-third discount (i.e. 10 months) to which he was entitled for his guilty plea, the Applicant was given an additional reduction of only 4 months for surrendering the stolen money to “Lick Sang” on his own initiative and giving evidence against the 2^nd defendant for the prosecution, and this reduction is (it is submitted) manifestly inadequate. With respect, we do not agree. According to the authorities, where an applicant has pleaded guilty and assisted the prosecution by giving evidence against other defendants in court, the reduction in sentence should be in the range of 45% to 50%. See HKSAR v Chan Sau Hing and another CACC 211/2001. The one-third discount for guilty plea is already subsumed in such a reduction. See Secretary for Justice v Lee Chun Ho Jeef [2010] 1 HKLRD 84. The Applicant’s term of imprisonment was reduced from 2½ years to 16 months. This 14-month reduction translates to approximately 47% of the starting point of 2½ years, which falls within the applicable range of reduction. We did not think that the Applicant can be given an extra reduction in this regard.

6.Mr. Wong also complains that the offence came to light in December 2011 but it was not until March 2013 that the Applicant was first brought to court, and he had to wait a total of 20-odd months before he was sentenced on 29 August 2013. Mr. Wong submits that, for a case of theft in which the facts were relatively straightforward, the time spent awaiting trial can hardly be considered short. He argues that the Applicant should have been given an additional reduction. We agree with the Judge’s ruling that there had been no deliberate delay in prosecution. The Judge accepted the prosecution’s explanation that in 2012 the prosecution still had to carry out extensive investigations including going through CCTV footage spanning a number of months, going through a large quantity of computer transaction records, enquiring into the 2^nd defendant’s bank accounts, seeking advice from the Department of Justice, etc. Once judicial proceedings have gone underway, the length of the wait for trial is not something completely within the prosecution’s control. We did not think that a further reduction in this regard is warranted.        

7.However, in our view, the Judge had failed to give the Applicant an appropriate reduction of sentence on account of his surrendering himself to the police and immediately returning the stolen money. In respect of the 2^nd defendant, who was convicted after trial, the Judge reduced his sentence by 3 months to reflect his having made restitution of $430,000 of the stolen money to the police. In our judgment, the 47% reduction given to the Applicant reflects only his guilty plea and assistance to the police, and he should be given a further reduction of 4 months to reflect this mitigating factor. See HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Wong Mei Heung CACC 273/2010. Ms. Chiu, Senior Public Prosecutor for the Respondent has conceded that there is room for a downward adjustment to the sentence on that ground.       

Conclusion

8.For the above reasons, we allow the application and, treating the hearing of the application as the appeal proper, we vary the sentence from 16 months’ imprisonment to 12 months’ imprisonment.

Ms. Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the Respondent.

Mr. Newman Wong, instructed by Messrs. Peter K.H. Wong & Co. and assigned by the Legal Aid Department, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by

Mr. Edmund Cham, Solicitor.