HKSAR v. Wan Ming Kwan

CACC 94/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 94 OF 2013

(ON APPEAL FROM DCCC 458 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the Reasons for Judgment of the Court):

1.The applicant sought leave to appeal against the total sentence of 5 years’ imprisonment imposed upon him by Deputy District Court Judge Longley on 6 March 2013, for two offences committed against Ms Srithong Tarinee on 16 October 2011, namely robbery (Charge 2) and theft (Charge 4), for which offences he was sentenced to 5 years (Charge 2) and 8 months’ imprisonment (Charge 4), which sentences were ordered to be served concurrently. At the hearing, we allowed the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quashed the sentences of 5 years’ imprisonment imposed in respect of Charge 2 and 8 months’ imprisonment imposed in respect of Charge 4. We substituted a sentence of 4½ years’ imprisonment in respect of Charge 2 and 7 months’ imprisonment in respect of Charge 4. We said we would give our reasons in due course. That, we do now.

2.On arraignment on 21 January 2013, the applicant pleaded guilty to those charges.  A third charge, namely of false imprisonment (Charge 3), was ordered to lie on the Court file, marked not be proceeded with without the leave of the Court.  The Particulars of Offence of both the robbery and the false imprisonment charges alleged that those offences had been committed by the applicant with three co-accused, with whom he was to stand trial.  In addition, those three co-accused were alleged to have committed a separate offence of theft (Charge 3).

3.The three co-accused having pleaded not guilty to the charges which they faced, the applicant was called as a witness for the prosecution in their ensuing trial.  At the conclusion of that trial the judge found the 3^rd and 4^th defendants guilty of Charges 1, 2 and 3 and the 2^nd defendant guilty of Charges 1 and 3, but not guilty of Charge 2.

Reasons for Sentence

4.In his Reasons for Sentence, the judge described the related background circumstances and the events of 16 October 2011, which were the subject of the charges:

Background

“ A gambling debt of about $10,000 was owed by a man called Ho Tak-shing to the 3^rd defendant.  That debt had been incurred by Ho in premises in Lily Mansion in Lockhart Road, which were also run as a store for Thai products by the 3^rd defendant and his mother, the 2^nd defendant.  It is apparent from the evidence which I accepted that the 3^rd defendant had decided to use the services of the 1^st defendant to obtain repayment of his debt. I was satisfied that the reason that the 3^rd defendant relied upon the 1^st defendant was because he knew that the 1^st defendant, who was a local bully who “moved around” with a group of men, and that the 1^st defendant was a person who could put pressure on Ho Tak-shing and intimidate him into making repayment.

Some time before l6 October 2011, the date to which the charges relate, the 1^st defendant and five to six others had severely assaulted Ho Tak-shing in the flat in Lily Mansion.  This turned out to be an unsuccessful attempt to force Ho to repay the debt.  The 3^rd defendant was present in the flat when that assault occurred.  Following that assault, other approaches had been made to Ho, including approaches by the 4^th defendant on behalf of the 1^st defendant to ascertain when Ho would repay the debt.  The debt was never repaid by Ho before Ho was sentenced to a term of imprisonment. 

It is clear that the idea came, at least to the mind of the 1^st defendant, to attempt to recover the debt from Ho Tak-shing’s girlfriend, Srithong Tarinee.  The attempt to force Srithong Tarinee to pay that debt is behind the events of l6 October 2011 which give rise to the charges before the court.” [1]

The events of 16 October 2011

5.Of the events of 16 October 2011, the judge said:

“ In the early hours of the morning of 16 October at around 6.30 am Srithong Tarinee was walking in the street in Wanchai when she was approached by the 1^st defendant and another man and instructed to follow them to the flat in Lily Mansion. She did so.

Before entering the flat the 1^st defendant had made a telephone call to the 3^rd defendant telling him to come to the flat. The 2^nd defendant opened the door to the flat, and Srithong Tarinee was taken inside and told by the 1^st defendant to sit on the floor by a refrigerator. After the arrival of the 3^rd defendant at the flat, the 1^st defendant questioned Srithong about her boyfriend’s imprisonment. Being dissatisfied with her answers, the 1^st defendant had slapped her face and told her that she had been brought there because of her boyfriend’s debt to the 3^rd defendant. The 1^st defendant took Srithong’s handbag and took $4,600 in cash and an HSBC bank card from the handbag.

……………..

There came a time that the 1^st defendant had called the 4^th defendant telling him that they had caught Ho Tak-shing’s girlfriend and instructing him to come to the flat. At about 8.28 am the 4^th defendant and an accomplice arrived and Srithong was taken into the kitchen area of the flat where she was again made to sit on the floor. The 4^th defendant told her that he had to collect another debt of $10,000 from her which her boyfriend owed to one of his so-called “brothers”. The 1^st defendant had added that Srithong had to pay a total of $30,000 because he was feeling “moody” and “unhappy”.

Srithong was told by the 1^st defendant to take off her ring and necklace and place them on the table. Thereafter Srithong was subjected to a number of assaults and threats by the 1^st defendant while she sat on the floor of the kitchen. He poked the middle of her forehead with a billiard cue, he threatened her by placing the blunt side of a chopper against her forehead, he told her that if she did not raise $30,000 by noon he would cut off all her fingers. As a result, she telephoned her ex-husband in a very distressed state and he reluctantly agreed to provide the money.

While waiting for her ex-husband to call back the 1^st defendant had subjected Srithong to further threats. He instructed the 3^rd defendant to take out a crossbow from his bedroom, which the 1^st defendant then pointed at Srithong and told her to open her legs, saying he intended to shoot her there. He told her to take off her clothes so he could photograph her naked. He did not ultimately do so because of objections by the 2^nd defendant.

Srithong’s ex-husband transferred at first $20,000 into Srithong’s Bank of China account, and later that morning $10,000 into the 2^nd defendant’s bank account. During the course of the morning the 1^st defendant was able to withdraw the $20,000 by demanding that Srithong hand over her ATM card and disclose her PIN number. Using them he withdrew $10,000 in cash directly from Srithong’s account and a further sum of $10,000 by transferring it to the 4^th defendant’s bank account and withdrawing it in cash by using the 4^th defendant’s ATM card and PIN number.

The $20,000 that was withdrawn in cash together with the $4,600 and bank card taken from Srithong’s handbag, and Srithong’s ring and necklace form the subject matter of the charge of robbery, Charge 2 in the amended and re-amended charge sheets. The $10,000 transferred into the 2^nd defendant’s bank account forms the subject matter of the charge of theft, Charge 3 in the re-amended charge sheet.

The 1^st defendant himself left the flat for the last time at 11.27 am, before he had completed all the banking transactions. When he did so, he left Srithong still seated on the floor in the kitchen area. …………Srithong was not permitted to leave the flat until around 4.30 pm.

In the early evening the 1^st defendant used Srithong’s bank card to buy clothes worth $380 in Temple Street. That incident is the subject of Charge 4 in the amended charge sheet.” [2]

6.Having observed of the treatment to which Ms Srithong Tarinee had been subjected, that it “must have been terrifying ordeal for approximately 10 hours” for which she had been chosen “simply because she was the girlfriend of Ho Tak Shing”, the judge addressed the relative culpability of the applicant and each of the defendants in turn.[3]

The applicant

7.Of the culpability of the applicant, the judge said: [4]

“ In terms of responsibility of what happened that day, you are by far the most culpable. You were the person who induced Srithong to go to the flat that day and summoned others to assist you. You were the person who personally used physical violence and threats against her. You made her sit on the floor, in both the living area and in the kitchen area. You slapped her in the face when she didn’t give you the answer you wanted in respect of her boyfriend’s imprisonment. You did that to instil fear into her and to try to impress the others present of your physical supremacy. In the kitchen area you subjected Srithong to the series of humiliating and terrifying incidents to which I have already referred. You demanded that she give you her ATM card and her PIN number, which you subsequently used to withdraw the money from the ATM machine.

The robbery was of an entirely innocent woman.  It involved a number of aggravating features, the threats and violence to which I have already referred, the taking of her ATM card and demanding her PIN number and using it to withdraw money, the fact that you summoned a number of accomplices to assist you in the enterprise. ”

Starting point

8.The judge identified the starting points for sentence of 7½ years for the offence of robbery and 12 months’ imprisonment for the theft charge.

Discount

9.Although the applicant had given evidence for the prosecution at the trial of his co-accused, the judge declined to accede to submissions made by counsel in mitigation on behalf of the applicant [5] and did not afford him any additional discount of sentence from that taken for the starting point to reflect his assistance to the authorities.  He said: [6]

“ … as I said in the reasons for verdict in respect of the other defendants, I was satisfied that there were matters about which you did not tell the truth to the court. In such circumstances, I do not consider it appropriate to give you any further discount beyond the one-third to which you are entitled to reflect your pleas of guilty.”

Sentence

10.In the result, the judge sentenced the applicant to 5 years’ imprisonment on Charge 1 and 8 months’ imprisonment on Charge 2, which sentences he ordered to be served concurrently.

Grounds of appeal against sentence

The 1^st defendant

11.On behalf of the applicant, Mr John Dunn submitted that the judge erred in declining to afford the applicant an additional reduction in the starting point taken for sentence “to reflect the fact that he had offered assistance to the authorities and had given evidence against his co-accused”.  In consequence, he contended that the sentences imposed on the applicant were wrong in principle.  Mr Dunn submitted that the factors identified in the judgment of Lord Lane CJ in the Court of Appeal of England and Wales in R v Sivan [7] as relevant to a consideration of mitigation of sentence by a defendant who has assisted the authorities were apposite to the instant application.

Consistency with the applicant’s non-prejudicial statement to the police

12.In his written submissions Mr Dunn contended the applicant’s evidence “..was consistent with the non-prejudicial statement which he gave to the police some two months before the trial”.  He said that there was relevant to the fact that there were inconsistencies in the respective evidence of the applicant and Ms Srithong Tarinee.  The prosecution had chosen to call the applicant as a witness for the prosecution in knowledge of the differences between the two witnesses.

The judge’s identification of untruthful testimony by the applicant

13.Mr Dunn submitted that the judge had erred in making the various determinations adverse to the applicant, or placed too much weight on them, in respect of seven areas in the evidence of the applicant which the judge had identified in his Reasons for Verdict as either being lies or which he determined were inconsistent with what he had said in out-of-court statements to the police or accepted in court as the basis for his pleas of guilty.[8]

A CONSIDERATION OF THE SUBMISSIONS

14.In his Reasons for Verdict, having acknowledged of the applicant that “much of his evidence as to the treatment of PW1 (Ms Srithong Tarinee) inside the flat in Lily Mansion and who was present was consistent with that of PW1, there were differences” the judge went on to note that amongst the differences were: [9]

“ On his account, after meeting PW1 in the street, they had not been able to gain access to the flat in Lily Mansion until after he had called the 3^rd defendant and the 3^rd defendant had arrived. This was inconsistent with the evidence of both PW1 and the 3^rd defendant.

On his account, in contrast to evidence of PW1, PW1 had been taken into the kitchen area before the arrival of the 4^th defendant. This was also inconsistent with the 3^rd defendant’s recollection when he gave evidence.

The 1^st defendant maintained that the 4^th defendant was not present during the incidents involving the chopper and crossbow.  He denied taking away the ring and necklace of PW1.  He maintained that he had not imprisoned PW1 in the flat and that she was free to leave if she wished.  He claimed that he understood PW1 had volunteered to repay her boyfriend’s debt.”

15.Having noted that the applicant had a criminal record, including one for offences of violence, and that he had used violence to obtain repayment of the loan in the instant case the judge said of the applicant: [10]

“ It is clear that he is somebody with underworld connections who may well have his own agenda to pursue. It is apparent from the evidence that his relationship with the 4^th defendant was different to that with the 2^nd and 3^rd defendants, which might provide motive for distorting their relative roles in what occurred.”

16.Thereafter, the judge went on to determine of the applicant’s testimony that, “there were matters about which he lied to the court or was not prepared to tell the whole truth.”  He identified those matters as being: [11]

“ His evidence that he had been tipped off by the 3^rd defendant as to the arrival of PW1 in Luard Road that morning conflicted with his statement in a video interview with the police that he had just happened to come across PW1 that morning.

His evidence that PW1 was free to leave the flat was contradicted by his admission to the police when he was arrested that had had imprisoned PW1.

At one point in his evidence, he admitted that he had lied when he had earlier told the court that on an occasion when the 4^th defendant had referred to his “big brother”, he did not know whether the 4^th defendant was referring to a sworn brother.

His denial that he took PW1’s ring and necklace was contradicted by the facts which he admitted after his plea of guilty before the court.

He was unconvincingly vague when asked about the document P7, a document that had unexpectedly been referred to by PW1 in the course of her evidence and about which he would not have expected to be asked.

I did not believe his account that the 3^rd defendant had agreed that he could keep any of the money he recovered from Ho Tak-shing.

I did not believe his evidence that he believed that PW1 had volunteered to repay her boyfriend’s debt.”

17.In the result, the judge determined of the applicant’s testimony:

“ In the light of these and other aspects of his evidence, I considered it unsafe to place any reliance on anything said by the 1^st defendant in his evidence, where it was not confirmed by other credible evidence. I, therefore, disregarded it in considering the case against the defendants.”

Mitigation on the behalf of the applicant

18.At an early part of her mitigation, counsel for the applicant adverted to the fact that she had heard the Reasons for Verdict being delivered and was aware of the criticisms of the applicant’s testimony. In response to the judge’s enquiry as to whether she was suggesting that the “court should give credit to somebody who has not told the truth”, counsel said: [12]

“ as far as his evidence to a certain extent or in fact to a large extent (it) is supported by PW1’s evidence……… his evidence must be consistent also with the statement he has given to the police. I mean there is no question of him being hostile or showing unwillingness to come forward to be a witness.”

The consistency of the applicant’s testimony with his non-prejudicial statement

19.As Mr Dunn submitted, it is correct that the applicant’s testimony of having encountered Ms Srithong Tarinee after having been told to expect her arrival by the 3^rd defendant, whom he also met in the street a short while earlier, is consistent with his non-prejudicial statement.  On the other hand, that testimony, as the applicant accepted, was contrary to his answer in and out-of-court interview conducted by the police, in which he said that he had met her by chance.  He explained in testimony that he gave the latter answer “to protect D3”. [13]  The inconsistency between the two versions was not explored at all in the non-prejudicial statement.  Similarly, the applicant’s testimony that the 3^rd defendant had told him that he could keep any money that he managed to obtain in respect of the debt owed to him by Ho Tak Shing was consistent with his non-prejudicial statement.

Testimony contradicted by other statements by the applicant

(i) The issue about whether or not Ms Srithong Tarinee was free to leave the premises

20.In cross-examination, the applicant accepted that in answer to being arrested and cautioned he had told a police officer “I did imprison and snatch Ah Sze’s money…..” [14]  At first, he said “I lied when I gave a statement to the police”.  In re-examination, he said “I didn’t tell a lie”. [15]  He accepted that he snatched her money, “I did take away the money, but I never imprisoned her”. [16]

21.Although the applicant had testified that Ms Srithong Tarinee was free to leave the premises, the applicant qualified that answer immediately saying that he had told that he was going to check the money she had arranged for her former husband to transfer had in fact been deposited.[17] He did not tell her that she could leave the premises and the door was closed behind him, with her inside the premises, when he left to check whether or not the banking transaction had occurred.  Notwithstanding the applicant’s prevarication in his testimony, the clear tenor of his evidence was that she was only free to leave the premises after he had obtained the money he had demanded from her.

(ii)    the applicant’s denial that he took Ms Srithong Tarinee’s ring and necklace

22.The Particulars of Offence of the robbery charge stipulated that the property concerned included “one ring, one necklace”.  Having pleaded guilty to the charges of robbery and theft, and after the Summary of Facts had been read out in court, the applicant confirmed that he accepted the latter as the basis on which he tendered his pleas of guilty.  The Summary of Facts included the stipulation that, in addition to taking $4,600 fromMs Srithong Tarinee’s handbag, he “also took away her diamond ring and platinum necklace”.

23.In his evidence-in-chief, the applicant accepted that he had askedMs Srithong Tarinee to remove her jewellery.  In response, she had removed her ring and necklace, which he had examined.  However, the applicant went on to assert that having done so he placed the jewellery on a table and did not know what became of it.  He had not taken those items. [18]  In cross-examination, he repeated his denial that he had taken the two items away.  The applicant accepted that his purpose in asking her to remove her jewellery was to determine if “the two items were valuable”.  In the event, he said that since she had other means to make the repayments he was demanding “it was not necessary way to take away the two items”.  He testified that he considered the two items were not worth the difference between the monies he demanded and the $4,600 he obtained in cash from her handbag. [19]  He agreed that he had accepted the contents of the Summary of Facts.  As far as the robbery was concerned, he did so because he had taken $4,600 in cash.  Further, he said that having asked her to remove those items and, since they had gone missing after he had placed them on the table, he accepted that he was responsible for their loss. [20]

24.Clearly, in those circumstances the judge was entitled to determine that his testimony was contradicted by his acceptance of the Summary of Facts.  On the other hand, given the applicant’s realistic acceptance of responsibility for the loss of the jewellery, clearly not much weight attached to the issue.  It is to be noted, that whilst the applicant accepted his theft of the $4,600 in the non-prejudicial statement, no mention was made of the jewellery.

The applicant’s lies

(i) the applicant’s evidence as to the meaning of the term ‘Big Brother’ used by the applicant in his non-prejudicial statement

25.In the context of the applicant’s evidence that the 4^th defendant had asked the applicant to reduce the amount of money demanded of Ho Tak Shing to $8,000 the applicant was cross-examined as to the meaning of the phrase ‘Big Brother’ used in his non-prejudicial statement.  There, he had said:

“ Chi Wang did call me telling me that the big brother of Ah B knew his big brother. He asked whether the amount of debt owed by Ah B could be lowered a bit..”

26.The following exchange ensued between counsel for the 3^rd defendant and the applicant:

“ A. Well, I said that the amount to be reduced, that would be all right because Chi Wang had told me that I had already assaulted “Ah B” and as the big brother of “Ah B” and Chi Wang’s big brother were acquaintance, then I agreed to reduce -- there was agreement to reduce the amount to 8,000. If the two big brothers were not acquaintance, I would not do that.

Q. Is the term “big brother” to be understood in the triad sense?

A. I didn’t know whether it meant sworn brother or what.

Q. Are you lying again there, Mr Wan?

A. I would like to know what lies I’m telling.

Q. You knew perfectly well that the term “big brother” has a triad meaning, and you were using that meaning in your statement.

A. That is because on the first day of the hearing I -- the court has already warned me that I should not say something that I think it was not necessary for me to tell.

COURT: Well, I want to remind you that the warning I gave you is that you are not obliged to say anything that might incriminate you. That didn’t give you licence to make up alternative stories.

A. Understand.

COURT: You’re still under an obligation to tell the truth.

A. Understand.”

27.If this is the testimony to which the judge was referring in his Reasons for Verdict in making his finding that the applicant admitted “that he had lied” that he did not know whether the 4^th defendant was referring to a “sworn brother”, it is clear there was no such admission by the applicant.  On the other hand, equally clearly, having regard to the context and all circumstances, the applicant was lying.

(ii) the judge’s determination that he did not believe the applicant’s testimony that the 3^rd defendant agreed with him that he could keep any money he recovered from Ho Tak Shing

28.In evidence-in-chief the applicant testified: [21]

“ D3 told me that for whatever amount they could collect, or would be given to me. He would not take it because he just did it…in order to vent his anger.”

29.As Mr Dunn submitted, that testimony accorded with the applicant's non-prejudicial statement in which he said of the 3^rd defendant:

“ He told me that it did not matter how much outstanding amount of the debt I dunned. He did not want the money and all would be given to me because it just felt aggrieved…”

30.In cross-examination, the applicant disagreed with the suggestion made to him by counsel for the 3^rd defendant that there was no agreement between them that the applicant could retain whatever part of the debt he collected, rather the arrangement was that he would be given ‘tea money’, saying: [22]

“ If D3 really agreed to give me the money for the collection of the debt I would negotiate with him the amount of the money before I took action.”

31.As Mr Dunn pointed out, the judge gave no reason for rejecting the applicant’s evidence in this respect.

(iii) The judge’s rejection of the applicant’s evidence that he believed Ms Srithong Tarinee had volunteered to repay her boyfriend’s debt

32.In his evidence-in-chief, the applicant had testified that the 3^rd defendant: [23]

“ …told me that Ah Sze had asked why I had assaulted her boyfriend Ah B so seriously. And Ah Sze said that if her boyfriend owed money, she could repay it for him.”

33.Earlier, the applicant testified of the circumstances in which the repayment of the debt was first raised with Ms Srithong Tarinee at the premises:

“ Q. What was discussed?

A. I told her that Ah B had owed a sum of 10,500.

Q. Yes?

A. I said to her, “It has been quite some time since he owed that, even if a repayment of 20,000, it won’t be too much.”

Q. Yes. What did she say about that?

A. I cannot quite remember how she replied to it.

Q. Did you explain to her why she should be repaying someone else’s debt?

A. I didn’t.

Q. Why not?

A. Because for many things we both understood.”

34.Whatever might be the meaning of the enigmatic exchange, it is clear from the applicant’s evidence that immediately he embarked upon using violence on Ms Srithong Tarinee, slapping her on the face, before he ever raised the question of repayment of the debt.  He did so in face of her assertion that her boyfriend was in prison for five or six years. [24]  Then, having made a demand for the payment of $20,000, the applicant described having immediately set about robbing Ms Srithong Tarinee, seizing her wallet and removing $4,600.

35.All of that conduct militated strongly against the suggestion that the applicant believed that Ms Srithong Tarinee had volunteered to repay the debt.  If he did believe that to be the case, why embark on violence before even asking her to make payment?  In that context, it is to be noted that the judge did not identify the evidence upon which he determined that the applicant believed that Ms Srithong Tarinee had volunteered to repay the debt.

The judge’s characterisation of the applicant’s evidence in respect of exhibit P7 as being “unconvincingly vague”

36.There was no dispute at trial that Exhibit P7 was a photocopy of the identity card of Ms Srithong Tarinee, which had been made in the premises on 16 October 2011.  On it the 4^th defendant had written an assertion that Ms Srithong Tarinee had borrowed $10,000 from him, which amount had been paid by Ms Srithong Tarinee to the 4^th defendant, so that there was no outstanding debt owed by the former to the latter.  Ms Srithong Tarinee signed the document, which was dated 16 October 2011.

37.Similarly, there was no dispute that the existence of the document emerged only in the testimony of Ms Srithong Tarinee.  As became clear in subsequent cross-examination, she had in fact referred to the making of exhibit P7 in her evidence-in-chief.[25]  In cross-examination, by counsel for the 2^nd defendant, she testified of having been told by the 4^th defendant that her boyfriend owed his ‘brother’s’ $10,000.  She said that she had been made by the 4^th defendant to make a “contract”.  She signed the document, which was written in Chinese on a photocopy of her own identity card.[26] In fact, there had been no such loan to her or payment to the 4^th defendant.

38.Of the circumstances in which the document had been made, Ms Srithong Tarinee testified in re-examination: [27]

“ Mr Ming-kwan (the applicant) asked my ID, asked for my ID card, and then gave it to the 3^rd defendant. And the 3^rd defendant took a photocopy and gave it to the 4^th defendant.”

39.In examination in chief, the applicant said that he could not remember having seen exhibit P7 before.  In the context of the fact that P7 was a photocopy of the identity card of Ms Srithong Tarinee, the applicant said that at the time when he had seized money from Ms Srithong Tarinee’s wallet he had removed her identity card, which he then replaced.[28]  The applicant went on to say “It seems that D3 had taken “Ah See’s” ID card to make a copy”.  However, he was not aware of what he had done with the copy.  Although he was aware that the 4^th defendant had a conversation with Ms Srithong Tarinee he did not know about what they talked.

40.There is no dispute that the applicant’s evidence in respect of the making of exhibit P7 was appropriately characterised as “vague”.  Relevant to the issue of whether or not it was “unconvincingly vague” was the fact that the applicant was testifying about events that occurred 15 months earlier, in respect of which he had not given any earlier out-of-court statement.  No doubt, it was the circumstances in which the exhibit came to be adduced into evidence that led the judge to note that the applicant would not have expected to have been asked to deal with that evidence.

Conclusion

41.It is to be noted that the judge enumerated the seven failings in the applicant’s evidence in the context of addressing the “extra caution” necessitated in examining the applicant’s evidence.[29]  Obviously, that was necessitated by the fact that he was an accomplice witness with his own interests to serve.  In the result, he stated that he “disregarded” the applicant’s evidence.[30]

42.The fact that the judge determined to disregard the applicant’s testimony is not per se determinative of the issue of whether or not the applicant was entitled to some credit for having assisted the prosecution by testifying in their case.  One consideration, which was raised in mitigation but not pursued or refuted, was the assertion that his evidence was consistent with his non-prejudicial statement to the police.  In that respect we have an advantage over the judge, in that we have that statement.  In those areas of evidence that were dealt with in the statement, the applicant’s testimony was consistent.  As Mr Dunn pointed out, in determining to call the applicant as a witness for the prosecution, the prosecution would have been aware of the differences in the testimony to be anticipated from the applicant in light of the content of his non-prejudicial statement and the account to be anticipated from Ms Srithong Tarinee. 　Of course, by the time that the applicant was actually called to give evidence Ms Srithong Tarinee had given evidence.

43.For the reasons set out earlier, we are satisfied that there is some force in Mr Dunn’s criticism of the validity of some of the judge’s findings in respect of the seven areas of the evidence of the applicant which led him to determine ultimately that the applicant was not entitled to an additional discount from the starting point taken for sentence.  In addition, as noted earlier, the judge found of the applicant that “..much of his evidence of the treatment of PW1.. and who was present was consistent with that of PW1.[31]  The applicant testified frankly of his misconduct towards Ms Srithong Tarinee: he had been engaged to collect a debt owed to the 3^rd defendant; had slapped her and then taken her wallet, from which he removed $4,600 [32]; he ordered her to remove her jewellery, which he had inspected for purposes of stealing if necessary, but placed it on a table;[33] and, in pursuit of the debt, he had placed a chopper against her head and pointed a crossbow, threatening to shoot her.  In cross-examination, he was adamant that the 3^rd defendant was present when Ms Srithong Tarinee was threatened and assaulted in that way.[34]  In giving that evidence against his co-defendants, the applicant was placing himself at some risk.  Although the applicant’s evidence as to the presence of the 4^th defendant at various events differed from that of Ms Srithong Tarinee, in particular as to his presence when she was threatened with a chopper and a crossbow, nevertheless it was not inconsistent with his non-prejudicial statement.  In light of the judge’s finding that the applicant’s relationship with the 4^th defendant, his fellow ‘debt collector’, was different from his relationship with the 2^nd and 3^rd defendants, no doubt the level of risk was less than it might otherwise have been.[35]

44.In all the circumstances, we were satisfied that the judge erred in denying the applicant any additional discount of sentence for his assistance to the authorities.  In our judgment, the applicant was entitled to an overall discount of about 40% from that taken as the starting point for sentence, to reflect both his plea of guilty and his assistance to the authorities.[36]

45.Accordingly, we allowed the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the sentences of 5 years’ imprisonment imposed in respect of Charge 2 and 8 months’ imprisonment imposed in respect of Charge 4.  We substituted a sentence of 4½ years’ imprisonment in respect of Charge 2 and 7 months’ imprisonment in respect of Charge 4.  We did not disturb the order that the sentences of imprisonment imposed for those charges he served concurrently.  In the result, the total sentence imposed on the applicant is 4½ years’ imprisonment.

Mr Jonathan T H Man, ADPP, of the Department of Justice, for the Respondent

Mr John Dunn, instructed by Jal N. Karbhari & Co, assigned by Director of Legal Aid, for the Applicant

[1] Reasons for Sentence; Appeal Bundle - pages 58-9, paragraphs 1-3.

[2] Reasons for Sentence; Appeal Bundle - pages 59-62, paragraphs 4-13.

[3] Reasons for Sentence; Appeal Bundle - page 62, paragraph 15.

[4] Reasons for Sentence; Appeal Bundle - page 63, paragraphs 17-18.

[5] Appeal Bundle, pages 425-6.

[6] Reasons for Verdict, paragraph 20.

[7] R v Sivan (1988) 10 Cr. App. R. (S) 282 at 287.

[8] Reasons for Verdict; Appeal Bundle - pages 38-39, paragraphs 60-67.

[9] Reasons for Verdict; Appeal Bundle - pages 37-38, paragraphs 55-57.

[10] Reasons for Verdict; Appeal Bundle - page 38, paragraph 59.

[11] Reasons for Verdict; Appeal Bundle - pages 38-39, paragraphs 60-67.

[12] Appeal Bundle, page 425 P-S.

[13] Appeal Bundle, page 360 E-I.

[14] Appeal Bundle, page 364 O-R.

[15] Appeal Bundle, page 370 L.

[16] Appeal Bundle, page 371 M.

[17] Appeal Bundle, page 330.

[18] Appeal Bundle, pages 319 T - 320 F.

[19] Appeal Bundle, page 356.

[20] Appeal Bundle, page 357 B-H.

[21] Appeal Bundle, page 299 R-S.

[22] Appeal Bundle, page 359 A-C.

[23] Appeal Bundle, page 313 B-C.

[24] Appeal Bundle, page 311 G-M.

[25] Appeal Bundle, page 94 E-M.

[26] Appeal Bundle, page 221 I.

[27] Appeal Bundle, page 277 A-C.

[28] Appeal Bundle, pages 345 T - 346 A.

[29] Reasons for Verdict; Appeal Bundle - page 38 Q, paragraph 59.

[30] Reasons for Verdict; Appeal Bundle - page 39 T, paragraph 68.

[31] Reasons for Verdict; Appeal Bundle - page 38, paragraph 54.

[32] Appeal Bundle, pages 311 and 314.

[33] Appeal Bundle, page 319.

[34] Appeal Bundle, page 363.

[35] Reasons for Verdict; Appeal Bundle - page 38, paragraph 58.

[36] See the Judgment of this Court in HKSAR v X (CACC 109/2011; unreported, 8 February 2012) at paragraph 33.