HKSAR v. SIU CHI HO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.275
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 11th May 1998, this Applicant (D2 at trial) appeared in the District Court before Judge Hawkes when he was dealt with for three offences to which he had pleaded guilty on an earlier occasion. The Applicant has today indicated his wish to abandon his application to appeal against the two-year sentence he received. Accordingly, as it has not been pursued we can dismiss it. However, before moving from this matter altogether, we feel it right to comment upon a most important and unfortunate turn of events which happened in the Applicant's case in the hope that this will not recur.

2. This Applicant was prepared to plead guilty from a very early stage. Not only that, he had been most cooperative and had provided a statement as a witness against others in his case. No doubt that is why, in due course, the Applicant was treated so leniently on the sentence. However, when the trial of his co-defendants was listed, they pleaded guilty. Originally, this Applicant was due to be sentenced at the end of that trial. The co-defendants were then dealt with by a judge in the District Court. The same judge, of course, ought to have dealt with this Applicant's case. Most unfortunately, that did not happen.

3. It is important that what this court said in R v Chan Kwok-hung, (1996) 4 HKC 559, should be borne in mind. In particular, the Court at page 562 said:

".... This case once again highlights the difficulties that may arise when different judges are assigned to deal with separate aspects of the same case. We take this opportunity to reiterate that where a co-defendant pleads guilty, it is generally desirable, whether or not he is likely to give evidence for the prosecution, (see R v Weekes & Ors (1982) 74 Cr App R 161) or for the defence (see R v Coffey (1982) 74 Cr App R 168), that sentence is postponed until the end of the trial unless there is a compelling reason to depart from the usual practice. By way of example, in some fraud cases, serious injustice can be caused by delaying the sentencing process indefinitely. In this case no clear reason has emerged for the two cases to have been dealt with by different judges at different times, but in such instances as this, the prosecution bears a responsibility to attempt to present its case as a whole and prevent, where possible, its fragmentation."

4. We wish to express the strongest disapproval, in the absence of any reasons given by the judge who sentenced this Applicant, that the judge who dealt with the co-defendants was not also called upon to deal with this Applicant.

5. Miss Chan, on behalf of the Respondent, has undertaken to remind those in her Chambers of the procedure in Chan which ought to be adopted, where two or more defendants are to be sentenced but, for one reason or another, the dates listed for sentence have somehow become separated in time. There is a duty on the prosecution to remind the court of the importance of one judge, wherever practicable, dealing with the sentencing of all defendants in a case, preferably on the same occasion, unless there are good reasons for his being unable to do so.