HKSAR v. WONG CHUN KIT

CACC 301/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 301 OF 2014

(ON APPEAL FROM DCCC NO. 836 OF 2002)

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JUDGMENT

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1.The hearing of 24 March 2015 was adjourned at the request of the applicant, who appeared unrepresented, so that he might be represented by Mr McGowan. The applicant seeks leave to appeal against sentences of imprisonment imposed on him on 21 August 2014 by District Court Judge Gary Lam, following his conviction on his pleas of guilty, in respect of two charges of blackmail (Charges 1 and 3) and two charges of theft (Charges 2 and 4) contrary to section 23(1) and (3) and section 9 respectively of the Theft Ordinance, Cap. 210. Those charges concerned the same victim, to whom I will refer to as Mr X, and occurred in the period 4 to 6 June 2002. Also, the applicant seeks leave to appeal in respect of the sentence of imprisonment imposed in respect of his conviction on a charge of failing to surrender to custody without reasonable cause, contrary to section 9 L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221 (Charge 5). That sentence was ordered to be served consecutively to the sentences of imprisonment imposed in respect of the other charges.

2.The applicant was sentenced to 20 months’ and 22 months’ imprisonment for Charges 1 and 3 and to 9 months’ imprisonment on each of Charges 2 and 4. Eight months of the sentences of imprisonment imposed in respect of Charges 1 and 2 were ordered to be served consecutively to the sentences of imprisonment imposed in respect of Charges 3 and 4. Accordingly, the total sentence imposed in respect of Charges1 to 4 was 30 months’ imprisonment. The applicant was sentenced to 4 months’ imprisonment in respect of Charge5, ordered to be served consecutively to the other sentences. Accordingly, the total sentence imposed on the applicant was 34 months’ imprisonment.

The facts

Charges 1 and 2

3.Charges 1 and 2 arose out of demands made by the applicant in a telephone conversation with MrX on 4 June 2002. Earlier, MrX had responded to a newspaper advertisement by telephoning the number there provided and requesting the services of prostitutes. At about 01:15 on 4 June 2002 two females attended his home in premises at Hing Wah Estate, Chai Wan. However, MrX declined their services, but nevertheless at their insistence paid them the pre-agreed payment of $600. Notwithstanding that payment, one of the females telephoned the applicant and in a conversation with MrX the applicant demanded payment of $6,000, asserting that the females were underage, and threatening that if the payment was not made he would come to Mr X’s home and ‘chop’ him. As a result, MrX accompanied the females to an ATM machine where, on the instructions of the applicant in a further telephone conversation, he transferred $5,700 to a bank account, the details of which were furnished by the applicant. Having returned to his home, MrChung made a report to the police.

Charges 3 and 4

4.At about 01:00 on 6 June 2002, the applicant telephoned MrX and made a further demand of him for the payment of money, saying that his “big brother” would telephone him. Shortly afterwards, MrX received a phone call from a man, ‘Fat Gor’, who claimed to be a member of the 14K Triad Society and demanded a further payment of $20,000 to resolve finally the incident of 4 June 2002, failing which MrX was told that trouble would ensue. In order to arrange payment, the caller provided MrX with the applicant’s telephone number. In a subsequent telephone conversation with the applicant, initiated by Mr X, the latter was threatened again with being chopped and told that his arrangements with the prostitutes would be made public. Agreement was reached between the applicant and MrX that payment of $10,000 would be provided. However, MrX having reported the matter to the police arrangements were made for monies to be paid under police surveillance.

4. About an hour later a female went to Mr X’s home and received payment of $10,000 in marked banknotes from an undercover woman police officer, who acted as Mr X’s sister. Having been arrested, the female assisted the police to contact the applicant by telephone and, following an arrangement made between them, the female handed over $8,700 in marked banknotes to the applicant in the vicinity of Sincere House in Argyle Street, Mongkok. Shortly afterwards the applicant was arrested and the marked banknotes recovered from him and from a shop where he had spent some of the money. Having been arrested and cautioned the applicant admitted the offences.

Charge 5

5.Having pleaded not guilty in the District Court on 11 October 2002, the applicant failed to attend his trial on 13 and 14 November 2002. Finally, on 28 April 2014 the applicant surrendered to a police station.

Reasons for sentence

6.In sentencing the applicant, the judge noted that he was 42years of age and had been convicted on six previous occasions of a total of involving ten offences, two of which were offences of dishonesty.

Starting point

7.In determining the appropriate starting point for sentence in respect of the blackmail charges the judge referred to the judgments of this Court in HKSAR v Chen Wei Li[1] and HKSAR v Xie Chun Mei[2], noting the similarity between the former case and that of the applicant in that it involved blackmail demands made in the context of the provision of the services of prostitution. Having observed that this Court upheld the starting point identified by the judge of 2½ years’ imprisonment for blackmail committed in those circumstances, the judge stipulated that sentence as the starting point for sentence in respect of Charges 1 and 3.

8.For the related offences of theft (Charges 2 and 4), the judge stipulated a starting point for sentence of 12months’ imprisonment. Having averted to the judgment of this Court in HKSAR v Wong Chi Hung[3], in which this Court upheld the judge’s stipulation of a starting point of 3 months’ imprisonment for a defendant who had absconded for 28 days, the judge stipulated a starting point for Charge 5 of 6 months’ imprisonment for the applicant.

Discount

Charges 1 to 4

9.Having referred to the judgment of this court in HKSAR v Leung Wai Shan[4], the judge noted that in the judgment of the Court, Stuart-MooreVP said that a discount of 25%, from that taken as a starting point, was the “very most one could expect from a late plea of guilty (as a result of absconding from bail)”. The judge said that in light of the fact that the applicant had absconded and remained at large for nearly 12 years, he afforded the applicant a reduced discount for his pleas of guilty of 25% from that taken as a starting point for sentence. Noting that the applicant had repaid MrX the $5,700 stolen in Charge2, the judge afforded the applicant a further discount of 2months’ imprisonment. However, he said that in order to give meaningful effect of the benefit to the applicant for the discount he would apply it to Charge1.

Charge 5

10.By contrast, the judge stated in terms that he afforded the applicant a discount of one-third from the starting point taken for sentence for Charge5.

11.Having observed that although Charges 3 and 4 arose from the same origins as Charges 1 and 2, nevertheless they were offences committed independently, the judge said that, subject to a consideration of the totality of sentence, those sentences ought to be ordered to be served consecutively.

Totality

12.Having regard to the principle of totality, the judge ordered that eightmonths of the sentences of imprisonment imposed in respect of Charges 1 and 2 be served consecutively to the sentences of imprisonment imposed in respect of Charges 3 and 4. Stating that Charge5 was “separate and distinct” from the other charges, the judge ordered that all of the sentence of four months’ imprisonment imposed in respect of that charge be served consecutively to the other sentences of imprisonment.

Grounds of appeal

13.In support of the application for leave to appeal against sentence MrMcGowan advanced two grounds of appeal. First, he submitted that, since the four charges concerned the same victim, the judge failed to take sufficient account of the principle of totality and erred in ordering that eightmonths of the sentence of imprisonment imposed for Charges 1 and 2 be served consecutively to the sentences of imprisonment imposed for Charges 3 and 4. Secondly, he contended that the judge had erred in ordering that all of the sentence of fourmonths’ imprisonment imposed in respect of Charge5 be served consecutively to the sentences of imprisonment imposed in respect of the other charges. He submitted that, given that the applicant had been afforded a reduced discount of 25% only for his plea of guilty, the effect of ordering the resulting sentence of imprisonment to be served consecutively was, in effect, “double counting”. More graphically in his written submissions he described as a “double whammy”.

14.In his oral submissions, Mr McGowan said that he took no issue with the starting points taken for sentence by the judge in respect of any of the charges. Further, he took no issue with the reduced discount of 25% afforded to the applicant by the judge in respect of the starting points taken sentence for Charges 1 to 4.

A consideration of the submissions

15.Although Charges 1 to 4 concern only one victim, namely Mr X, the charges reflect two separate occasions of criminal conducted by the applicant, namely on 4 and 6 June 2002 respectively. On each occasion, MrX was threatened with serious violence in the event that he failed to make the payment demanded of him. On each occasion, a lot insignificant amount of money was stolen. On the second occasion, the applicant and another man committed the offence together. First, the applicant initiated contact with MrX and demanded an additional payment of money in relation to the incident of 4 June 2002 telling him that his “Big Brother” would telephone him. Then, a man calling himself ‘Fat Gor’ did call Mr X, claiming to be a member of the ‘14 K’ Triad Society, threatening to send his “brothers” to cause him trouble. As demanded of him by ‘Fat Gor’, MrX telephoned the applicant who arranged for a female to visit Mr X’s home to collect the money demanded of him.

16.Clearly, in those circumstances, the judge was entitled to describe the two sets of charges as “independent” of one another, so that in principle the sentences ought to be ordered to be consecutive with one another, subject to totality. The fact that the offences concerned the same victim is nothing to the point.

17.The judge’s order that eight months of the sentence of imprisonment imposed in respect of Charges 1 and 2 be served consecutively to the sentence of imprisonment imposed in respect of Charges 3 and 4 is, perhaps, a little bit surprising given that the offences the subject of Charges 3 and 4 were committed after those the subject of the former charges. So, it was the conduct the subject of the latter charges that was in aggravation of the earlier offences. Be that as it may, I am satisfied that the totality of the sentences of imprisonment upon the applicant for Charges 1 to 4, namely 30 months’ imprisonment was entirely appropriate.

18.Given that the applicant had absconded, and remained at large for over 11½years, whilst on bail pending his trial on Charges 1 to 4, on its face it appears that the judge was generous in affording the applicant a discount of 25% from the starting point stipulated for sentence. As the judge noted, in the judgment of the Court delivered by Stuart-MooreVP in HKSAR v Leung Wai Shan a discount of 25% from that stipulated as the starting point taken for sentence was described as the “the very most” to be expected by an applicant who had absconded whilst on bail and whose subsequent plea of guilty was therefore not timely. It is not entirely clear from the judgment how long that applicant remained at large or how the applicant was re-arrested. She was sentenced on 8 August 2002. However, it appears from the related judgment, to which reference was made in the judgment, the court in HKSAR v Wong Fung Ming & Another[5] that the offence was committed in the period between May and July 1999 and the other co-defendants dealt with in October 2001, having pleaded guilty or having been found guilty after trial in that month. It follows that the longest possible period over which that applicant could have absconded was three years only.

19.In the judgment of this Court in HKSAR v Kwok Shiu To, William[6] the appropriate discount for an applicant who had absconded whilst on bail for about 4½years was determined to be 20% only. There the applicant had absconded in February 2001 and had not been re-arrested until August 2005. However, in that case the applicant had been re-arrested, whereas in this case, as MrMcGowan pointed out, the applicant had surrendered to police.

Double counting

20.The criticism that, having been denied the full one-third discount for his pleas of guilty in respect of Charges 1 to 4, in ordering that the sentence of imprisonment imposed in respect of Charge 5 was to be served consecutively to the other sentences of imprisonment, the judge was subjecting the applicant to an element of ‘double counting’ is misplaced. The denial of the full one-third discount simply reflects the fact that the applicant’s pleas of guilty were not timely. They were anything but timely. They required the court to schedule two separate hearings. In those circumstances, the applicant was not entitled to a one-third discount from that taken as the starting point. The offence encompassed by Charge5 was a separate and distinct criminal offence.

21.The issue was addressed in the judgment of this Court delivered by KeithJA in HKSAR v Poon Chum Kong.[7] In that case, the applicant trafficked unlawfully in dangerous drugs in August 1993. However, he absconded whilst on bail. He was re-arrested by the police and pleaded guilty to the offence in April 1999. Accordingly, his plea of guilty came 5years and 9months after the commission of the offence. However, it is not clear from the judgment when it was that he absconded. In sentencing the applicant, the judge afforded him a discount of one-quarter only. This Court approved of that approach to sentence.

22.In the course of his judgment, KeithJA said:[8]

“ One of us was initially concerned about that approach. A person admitted to bail who fails to surrender to custody when called upon to do so commits an offence punishable with imprisonment: see section 9L of the Criminal Procedure Ordinance (Cap. 221). To deny a defendant who absconded the discount for his plea of guilty which he would otherwise have been given could be said to be tantamount to punishing him for committing that offence. He is, in effect, serving an additional sentence for having absconded when he had not been charged with that. It could be said that it was wrong to treat the defendant in a way which has the effect of him receiving an additional sentence of imprisonment for an offence for which he had never been charged.

However, any initial misgivings about that approach have now been laid to rest. The reason why the discount is reduced in these circumstances is because the plea of guilty is not tendered at the earliest opportunity. Indeed, the effect of the Applicant absconding was that there had to be a second trial. He was not therefore being punished for absconding. He was being denied the discount to which he would otherwise have been entitled because of the consequences of his absconding, namely that his plea of guilty was in the circumstances a late plea and that a second trial was necessary. If one of the justifications for giving a discount for a plea of guilty is the saving of the expense of a contested trial, that was to some extent neutralised in the present case by the expense of an albeit short second trial.”

Conclusion

23.I am satisfied that there is no merit in either of the grounds of appeal advanced by the applicant. Accordingly, his application for leave to appeal against sentence is dismissed.

24.The applicant is advised that, following the refusal of his application by the single judge, he may renew his application for leave to appeal against sentence, if he wishes to do so, by filing FormXIII of the Criminal Appeal Rules, Cap.221 within 14 days. However, he is informed that if the Court of Appeal comes to the conclusion that there was no justification for the renewal, it has power to make a direction for the loss of time, namely in respect of some or all of the time that the applicant has served in custody for these offences since he filed his notice of his application for leave to appeal pending the hearing of his application.