R. v. LAI KIN KEUNG

Criminal No. 206 of 1995

Headnote

Sentencing in District Court when appropriate "starting point" is above 7 years.

Mo Kwong-sang v The Queen [1981] HKLR 610 and R v Kwok Chi-kwan and another [1990] 1 HKLR 293 considered in light of the sentencing policy to allow about one-third discount after a plea of guilty.

IN THE COURT OF APPEAL

1995, No. 206
(Criminal)

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REASONS FOR JUDGMENT

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Mortimer, J.A. (giving the judgment of the Court) :

1. We allowed this appeal against sentence on 3 May 1996. We now give reasons.

2. On 3 March 1995 the appellant pleaded guilty to two offences of conspiracy, one to accept and the other to offer bribes contrary to s.4 of the Prevention of Bribery Ordinance before His Honour Judge Bailey in the District Court. He was sentenced to concurrent terms of 5 years imprisonment.

The facts

3. The appellant was a Senior Inspector in the Royal Hong Kong Police Force. Between July 1991 and April 1994 he was attached to the Mongkok Police Station. From February 1993 he was the Assistant District Operations Officer and on two occasions he acted as District Operations Officer. His main duty was to assist in the planning of operations against illegal gambling, dangerous drugs and, in particular, vice activities in Mongkok. He had under his command four teams of Special Duty Squads, two dealing with vice, one with gambling and one with dangerous drugs. Twenty-four vice establishments were involved in the offences and at least one other officer was corrupted by being offered bribes by the other conspirators. The appellant, as a senior officer, played a pivotal role in the conspiracies which smacked of syndicated corruption of the kind prevalent before the establishment of the ICAC. Large sums of money were involved. There were bribes of at least $600,000 and loans of $700,000, none of which has been recovered.

The sentence

4. The prosecution of these grave offences in the District Court presented the judge with a sentencing problem. The proper starting point after trial was obviously well in excess of the District Court powers. But for this limitation, the judge would have adopted 10 years as a starting point. For these reasons, he adopted his maximum of 7 years. Taking into account the early pleas of guilty and other mitigating factors, he reduced the sentence for each offence to 5 years and on the basis that the two conspiracies were so interwoven, he made the sentences concurrent.

5. At the time the appellant had offered to give help to the police and prosecuting authorities, but at that time he had only provided statements. Rightly, the judge only took into account this limited assistance.

The appeal

6. Since the sentence was passed, the appellant has given considerable assistance. Mr Lunn QC who appears for him submits that the sentence passed by the judge was in the then circumstances proper; that it is open to this Court on appeal to give credit for the assistance now given; and that the sentences ought to be reduced on the basis that the appellant falls into the "supergrass" category.

The approach of this Court

7. In an appeal of this nature, the court will first consider the overall sentence passed by the judge in the light of the new circumstances put before it. The sentence will be disturbed only if having taken into account all those circumstances the sentence is either wrong in principle or manifestly excessive.

8. Although Mr Lunn does not seek to argue that the original sentence was other than proper, he submits that it was not lenient by pointing out that this was not the most serious type of police corruption as it did not involve trafficking in heroin. He cites AG v Lau Shek Man and others [1987] 3 HKC 64 in which this Court on a review of sentence in a broadly similar case refused to interfere with a starting point of 4 years. However, even with that case in mind, we are of the view that the offences here were of such gravity that the judge's view that 10 years would have been the correct starting point, is one with which we agree.

9. This sentencing problem was addressed in Mo Kwong-sang v The Queen [1981] HKLR 610 at 611J:

"Where a District Court would be disposed, had it power to do so, to impose a sentence exceeding seven years, the correct course would be for the judge to indicate what sentence he would have awarded if he had been able to do so and then to impose one of seven years' imprisonment."

10. The problems which arise in giving a proper discount for a plea of guilty in these circumstances were later addressed by this Court in R v Kwok Chi-kwan and another [1990] 1 HKLR 293. Silke JA giving the judgment of the Court, said at 296A:

"Pleas of guilty are to be encouraged for various well known reasons: ... Pleas made at the earliest possible moment deserve greater encouragement.

If Mo were to be strictly applied then there would be no such encouragement and, in consequence, those whose duty it is to give advice to defendants would find themselves in some difficulty.

We accept that charges, over which the Attorney General has complete discretion, are not brought in the wrong court on any regular basis and that when they are, as here, then a defendant may be said to have an advantage given him. But this is an advantage unsolicited by a defendant and it should not result in what can be termed the legitimate expectation of some recognition of a plea being denied him.

What that recognition, in the sense of a discount, might be is entirely at the discretion of the trial judge. He is entitled to give weight, as was also said in Mo, to 'the record, age or other personal circumstances' of a defendant and a court should not be inhibited from adjusting guidelines accordingly."

11. In Kwok Chi-kwan's case minimal discounts from 7 years were given, but this case and Mo's case must now be considered in the light of the settled sentencing policy laid down in guidelines by this Court that a plea of guilty will, in normal circumstances, attract a discount of approximately one-third. However, when the proper starting point is well above the powers of the District Court, as in the present case, it may be necessary for the judge to make some adjustment.

12. Here, the judge chose not to give the full one-third discount from 7 years. In doing this, the judge balanced and applied the various guidelines and sentencing policies appropriately within his discretion. The result was a proper overall sentence bearing in mind the limit of his powers. Had the case been brought in the proper court, the sentence would be regarded as lenient.

13. The sentence does not give the appellant any credit for the further assistance which he has since given to the police and the prosecuting authorities. This is considerable. In summary since November 1995, he has given evidence for the Crown on three occasions against vice den operators, all of whom were convicted. On a further occasion, he gave evidence against three of his former colleagues alleged to have been corrupt. His colleagues were acquitted. Not by reason of a defect in his evidence, but on the basis that his evidence, as an accomplice, was unsupported. On each occasion, his evidence was wholly consistent with the statements which he had given.

14. There is no evidence that he, or his family, had been subjected to threats of violence, but the authorities believe this to be so likely, that elaborate steps have been taken to protect them.

15. He has offered to give evidence in future cases as well but this is not a matter which can be given weight in this appeal.

Conclusion

16. With the important qualification that the case was brought in the District Court the sentences passed were proper. The appellant has given great - and largely successful - assistance in the prosecution of others. This has put him and his family at personal risk. We have heard contrary submissions from the appellant and the Crown as to whether he falls within the "supergrass" category. In this case it is unnecessary to resolve that nice technicality. We do not regard the guideline to be that every "supergrass" must receive a two-third reduction in his sentence. This is the maximum reduction that such an accused can expect. In each case it falls for the appropriate tribunal to assess the full circumstances of the assistance given and the risks faced.

17. Bearing in mind that it is settled sentencing policy to give encouragement to those who give assistance to the authorities at personal risk and bearing in mind the many other factors in this case - which is far from straightforward - we concluded that justice would be achieved by reducing the concurrent sentences of 5 years imprisonment to concurrent sentences of 4 years imprisonment. For these reasons and to this extent, we allowed the appeal.