HKSAR v. LAM KAI MAN

CACC 246/2019

[2020] HKCA 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 246 OF 2019

(ON APPEAL FROM HCCC 265 OF 2018)

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REASONS FOR JUDGMENT

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1.  The applicant pleaded guilty to one count of “procurement of unlawful sexual act by threat”, contrary to section 119(1) of the Crimes Ordinance, Cap 200 before M Poon J (“the judge”) at the Court of First Instance. On 11 June 2019, he was sentenced to 5 years and 2 months’ imprisonment but did not apply for leave to appeal against his sentence until 19 August 2019, by which time he was more than one month out of time.

2.  At the hearing of the application I granted the applicant an extension of time in which to apply for leave to appeal and granted him leave to appeal. I said I would hand down my reasons for doing so at a later time. This I now do.

Procedural history

3.  In order to properly understand the applicant’s complaint, it is necessary to look at the history of the lower court proceedings.  Initially the applicant faced one count of “rape”, contrary to section 118(1) of the Crimes Ordinance, Cap 200.  He was represented by Mr Ivan Tang of Messrs Ivan Tang & Co pending his committal to the High Court. Prior to his committal on 27 August 2018, the following correspondence took place between Ms Christal Chan of the Department of Justice and Mr Tang:

Date	Location  in Appeal Bundle	Content of Communication
21 June 2018	AB38	Mr Tang enquired “whether the Prosecution is prepared to offer no evidence against the Defendant for the Charge [of rape] if he pleads guilty to the charge of Procurement by False Pretences”.
11 July 2018	AB39	The prosecution replied that it “will not accept the Defendant’s offer to please (sic) guilty to the change (sic) of ‘Procurement by False Pretences’” and “will seek to commit the Defendant” for trial on the present charge of rape.
11 July 2018	AB40	Mr Tang further enquired“whether the Prosecution is prepared to offer no evidence against the Defendant for the Charge of Rape if he pleads guilty to the charge of Procurement by threat”.
12 July 2018	AB41	The prosecution replied that it “will not accept the Defendant’s offer to please (sic) guilty to the change (sic) of ‘Procurement by Threat’” and “will seek to commit the Defendant” for trial on the present charge of rape.
23 July 2018	AB32	Mr Tang in his letter referred to another sentencing case, HKSAR v Lau Ka Shing[1], a copy of which he attached to his letter, in respect of which he submitted “the facts [of Lau Ka Shing] are quite similar to the present case” and since the prosecution in that case agreed to lay the alternative charge of Procurement by Threat, Mr Tang requested the prosecution “to reconsider laying an alternative charge of ‘Procurement by threats’ against our client”.
10 August 2018	AB31	The prosecution replied that it had “considered again” the defence representation “on the same offer”, yet “will not accept the Defendant’s offer to please (sic) guilty to the charge of ‘Procurement by Threat’” and “will seek to commit the Defendant” for trial on the present charge of rape.

4.  It should be noted that procurement of an unlawful sexual act by false pretences is made an offence by section 120 of the Crimes Ordinance, Cap 200 and procurement of an unlawful sexual act by threats is made an offence by section 119 of the same ordinance.  Both offences are alternative convictions to the offence of rape by operation of section 149 in conjunction with Schedule 1 of this ordinance.

5.  On 27 August 2018, the applicant was committed to the Court of First Instance for trial upon entering a plea of not guilty.  The Return Day Record[2] reveals that at the committal hearing the applicant, through his counsel, pleaded not guilty with no offer being made by him to plead guilty to any lesser charge.

6.  In a Case Management Questionnaire dated 25 October 2018[3] prepared by the applicant’s then counsel, Mr Chung Boey, the defence indicated that the applicant intended to maintain his plea of not guilty, and on the question of whether any plea to a lesser charge was to be tendered the answer was “N/A”.  It was also stated that the credibility of the victim and the issue of consent were under dispute.  Lastly, on the issue of whether there would be an application for the amendment of the indictment, the answer was N/A.    

7.  The case was set down for a 13-day trial beginning on 7 May 2019.  On the first day of trial, however, Mr Boey told the court that the applicant intended to discharge his legal representatives.  After hearing from the parties, the judge allowed the applicant to discharge his legal representatives and adjourned the case for mention on 10 May 2019. 

8.  Mr David Boyton of counsel was assigned by the Director of Legal Aid to represent the applicant in place of Mr Boey.  On 8 May 2019 My Boyton wrote to Mr Neil Mitchell, counsel on fiat for the Department of Justice, informing him that the applicant “is willing to plead guilty to the offence of Procurement by threats…in lieu of rape”[4].  On 10 May 2019, the judge was informed by the prosecution that it would accept the applicant’s offer to plead guilty to the lesser charge and on 16 May 2019 the applicant was arraigned on an amended indictment containing counts for both offences that were pleaded in the alternative.  He pleaded not guilty to rape (Count 1) and guilty to procurement of unlawful sexual act by threat (Count 2).

9.  He was convicted of Count 2 by the judge upon his admission of the contents of the Summary of Facts.  No order was made in relation to Count 1.      

The background to the offence

10.  The Summary of Facts which the applicant admitted for the purpose of his sentencing revealed that in August 2017 he met the victim, X, on “Instagram” and arranged to meet her by way of “compensated dating” at the agreed rate of HK$3,500 for two hours.  At the time X was 18 years of age and was a student, living with her parents.  On 29 August 2017, they met up as agreed and went to an hourly-rate guesthouse nearby.  A room was rented for two hours.

11.  Once they entered the room, the applicant asked X to produce her ID card to confirm whether she was over 18 years old, and insisted that he needed to take a picture of it, to which X reluctantly agreed.  After the applicant put HK$3,500 on the cabinet, he asked X to perform oral sex for him to which she agreed.  Whilst this was taking place, the applicant suddenly claimed that he was collecting intelligence about compensated dating as an informer or some kind of agent of the police.  He demanded X take out her identity card and when she queried why he told her he “was a contracted officer of the Police, not an official police officer.”  He also pretended to “seize” the $3,500 by putting it into a zipper bag as an “exhibit”. 

12.  At that time X genuinely believed the applicant was working on behalf of a law enforcement agency and was very scared and did not know what to do. The applicant told her that she had to have sexual intercourse with him otherwise she would be arrested and the act had to be audio recorded.  X was very frightened and asked the applicant to allow her to leave, telling him that she did not want to have sexual intercourse with him.  The applicant refused to allow her to leave until they had sexual intercourse.  X believed she would be arrested if she did not do as she was told.  The applicant commenced the recording and as he began touching her body X used her hand to push him away, but to no avail.  Sexual intercourse eventually took place against her wish and no condom was used.  It was an admitted fact that it was only because X felt threatened and intimidated that sexual intercourse took place and X did not participate in it voluntarily. 

13.  On the following days the applicant kept contacting X through WhatsApp and demanded she have sexual intercourse with him again to prove they were dating and that she was not engaged in compensated dating.  The applicant also said to her that her personal information would only be deleted in her presence. 

14.  X reported the matter to the police and the applicant was arrested on 8 September 2017.  Under caution, he said he had found and paid money to a girl for compensated dating.  With forensic recovery technology, two audio recordings that were created prior to the incident in the room, and one video recording of what took place in the room were recovered from his mobile phone.   

The mitigation

15.  The applicant was 33 years of age.  He had a conviction of rape in 2013 for which he had been sentenced to 6 years’ imprisonment[5]. He was released from prison on 9 May 2017 and was subject to post-release supervision.   

16.  For the purpose of sentencing, the judge ordered a psychological report for X, and psychiatric and psychological reports for the applicant. 

17.  Mr Boyton acknowledged that there were certain aggravating factors in that the applicant committed the present offence shortly after he was released from prison for a similar offence, he did not use a condom and he captured photos and videos of the victim during the sexual intercourse with his phone.   

18.  Mr Boyton accepted that the applicant’s plea was tendered late, nevertheless he invited the court to allow him a full one-third discount in view of the unsuccessful plea bargain attempts before his guilty plea.  To advance this submission, only the defence letter dated 23 July 2018[6] and the prosecution reply dated 10 August 2018[7] were submitted for the judge’s consideration.  Having read the letters, however, the judge formed the view that the defence letter was only“a quotation of the case of [Lau Ka Shing] and saying how much similarity both cases share, so asking the prosecution to have an alternative charge of procuring, that’s all.  Nowhere in that letter was it offered that ‘If you add that charge we are prepared to plead guilty to it’”[8].

19.  Mr Boyton accepted that on a plain reading of the letter the defence was only asking for the addition of an alternative charge in the indictment, but he submitted to the judge that from the prosecution’s reply it was apparent that it was the understanding of both parties that the applicant was offering to plead guilty to the alternative charge.  In reply to this submission the judge indicated that she was not bound by the prosecution’s letter.

The judge’s Reasons for Sentence

20.  Having considered the facts of the case, the background of the applicant, the mitigation advanced by My Boyton, the impact on X, the high risk of the applicant re-offending and the aggravating factors of the present offence, the judge considered the present case contained more aggravating features than that of Lau Ka Shing.  The judge adopted a starting point of 6 ½ years’ imprisonment. 

21.  The judge then turned to the discount that should be awarded to the applicant for his late plea.  She said:

“Counsel urged me to give him the full one-third discount on the basis that he had offered to plead to the present charge through his former lawyers by a letter dated 23 July 2018 before committal, which was rejected by the prosecution.

I have had sight of that letter, and I find that nowhere was it indicated in that letter that his offer to plead guilty for this charge. It was only implored on his behalf that in view of the similarity between this case and that of 劉嘉誠 [Lau Ka Shing] whether the prosecution would lay this charge as an alternative to the rape charge, which was rejected by the prosecution.

I have borne in mind that he had made certain allegations against his first team of legal representatives which nearly caused the trial to be re-fixed. It was under such circumstances that the prosecution, having consulted X, agreed to the defendant’s plea to an alternative charge, the maximum of which is significantly lower than the original rape charge.

In view of all these, I decline to give him the one-third discount. He is only entitled to 20 per cent discount. He is sentenced to 5 years and 2 months’ imprisonment.”[9]

The grounds of appeal

22.  The applicant was unrepresented in the leave hearing.  In his Form XI he explained that he was late in lodging his appeal because it took him considerable time to write to the Hong Kong Bar Association for legal advice, and he needed time to confirm the contents of the correspondences between his then lawyers and the Department of Justice pending his committal for the purpose of this appeal. 

23.  In his Form XI, the applicant stated that he wished to appeal his sentence on the ground that the judge erred in unreasonably refusing to give him a full one-third discount for his guilty plea.  He stated that due to discord with his former legal representatives, he requested to discharge them on the first day of his trial.  He then pleaded guilty to the alternative count once the prosecution consented to the offer made by his new legal representatives.  He added that the alternative charge was only added at a very late stage so it was not possible for him to make a timely guilty plea before he was committed to the Court of First Instance.  

24.  In his hand written submission filed on 16 January 2020, he stated that he did not dispute the starting point adopted by the judge and only complained about the discount he was given for his guilty plea.  He submitted that it was apparent in the reply by the Department of Justice that it had been aware of his intention to plead guilty to the alternative charge of “Procurement by threat” from a very early stage.  It was, therefore, unfair for the Department of Justice to indirectly control whether he could receive the full one-third discount.  He disagreed that the Department of Justice accepted his plea to the alternative charge only upon consulting the victim’s view after the discharge of his then legal representatives. 

25.  He also submitted that he should be given the full one-third discount as in HKSAR v Lai Wing Tat[10], where the defendant was given one-third discount by the same judge upon his guilty plea to an alternative charge that was only added after the case was committed to the Court of First Instance.      

The respondent’s submissions

26.  The respondent, represented by Mr Ivan Leung, Senior Public Prosecutor, opposed the applicant’s application for leave to appeal against sentence out of time.

27.  Concerning the issue of delay, the respondent submitted that although the delay of over a month was not trivial, it was not in itself inordinate as those correspondences that the applicant was checking are relevant to the present application.  The respondent accepted that whether an extension of time should be granted to the applicant would primarily depend on whether or not his appeal is reasonably arguable.

28.  In respect of the appropriate discount to be awarded the applicant for his plea of guilty, Mr Leung submitted that the judge was correct in refusing to give him the full one-third discount because the applicant did not make any genuine and unequivocal offer, or indication of intention to plead guilty to the lesser offence for the purpose of obtaining a sentencing discount.  In order to obtain sentencing discount, something more than mere enquiry or “sounding out” is required, and it must not be inconsistent with the stance subsequently taken by the defendant in the contemplated trial.  The letters from the defence were only enquiries not amounting to a clear and unequivocal offer.

29.  Moreover, the respondent submitted, the applicant’s subsequent conduct was plainly inconsistent with any offer or intention to plead guilty.  He did not offer a plea to the statutory alternative at committal and in the Case Management Questionnaire, the defence did not state any intention to tender a guilty plea to a lesser charge, but rather stated that the credibility of the victim would be disputed and it was his defence that the intercourse was by consent and not the result of threats. By not giving an unequivocal indication to plead guilty and subsequently taking a stance that was consistent with seeking a full acquittal, the applicant was not entitled to the full one-third discount. 

30.  Lastly, the respondent submitted that the applicant’s late attempt in changing his legal representatives was a relevant factor to decide the value of his guilty plea.  Clearly, as noted in HKSAR v Ngo Van Nam[11], the utilitarian value of a guilty plea lies partly in the fact that it may spare the victim the ordeal of having to give evidence especially in sexual offence cases.  It was submitted that the applicant’s conduct had, to some degree, undermined this aspect of the utilitarian value of his plea and this was a relevant consideration in the judge’s exercise of her discretion. It was therefore not reasonably arguable that the judge erred in giving only 20% discount for the applicant’s guilty plea. 

Discussion

31.  The applicant was just over one month out of time in filing his Form XI.  It was my view that this amount of delay was not substantial and in any event was excused by his need to obtain the correspondence that took place between his solicitors and the Department of Justice prior to his committal.  Furthermore, I would not deny the applicant an extension of time if by doing so I would be shutting out a plainly arguable ground of appeal and I am satisfied that such a ground exists in respect of his complaint.  For these reasons I granted the applicant the extension of time in which to apply for leave to appeal.

32.  The applicant does not take issue with the starting point adopted by the judge and nor could he.  In reality this was a rape cruelly committed by an older man who showed himself capable of manipulating and taking advantage of his much younger victim.  There is nothing in the circumstances of the offence or the circumstances of this applicant which attract the sympathy of the court. 

33.  The complaint of the applicant is a very narrow one and is that he has been unlawfully deprived of the full one-third discount for his guilty plea.  In legal terms the issue I have to decide is whether it is reasonably arguable that in exercising her discretion not to award the applicant the full one-third discount for his guilty plea the judge erred in some way with the consequence that the exercise by her of her sentencing discretion miscarried.

34.  In Ngo Van Nam, the Court of Appeal laid down guidelines as to the applicable sentencing discounts to be given to a defendant depending on the stage at which the guilty plea was entered, but expressly stated that there were “subject to the overriding discretion of the judge in sentence”.  

35.  In the course of the mitigation that was advanced on 16 May 2019 the judge indicated that she was well aware that the amount of the discount she should award the applicant for his plea of guilty was an exercise of discretion by her.  As to how she should exercise this discretion she said:

“Court: I have to look at the whole history of this case, how he sacked his counsel causing this case nearly to have to be aborted or adjourned and in the end resulting in this plea bargaining.”[12]

36.  When this passage is read together with what she subsequently said in her Reasons for Sentence, which I have quoted at [21] of this judgment, there are two matters that are of concern to me.  The first is that she took a view of the correspondence between Mr Tang and Ms Chan based on the contents of only the letter of 23 July 2018 and without a full knowledge of the background communications between Mr Tang and Ms Chan.  The second matter is that she appears to have regarded the applicant’s discharge of his legal representation as an attempt to frustrate the trial or to improperly pressure the prosecution and X into agreeing to the plea bargain, a ploy that is not uncommonly encountered by trial judges. 

37.  In respect of the first matter, a failure, even one not the fault of the judge, to have regard to a consideration relevant to the exercise of the discretion, will cause that exercise of discretion to miscarry.  In respect of the second matter, it is, in my view, reasonably arguable that in all the circumstances, it was not reasonably open to the judge to take such an adverse view of the applicant’s conduct.  If the adverse view taken by the judge of the applicant in respect of the second matter is found to be not reasonably open to the judge then the consequence would be that in exercising her discretion the judge had regard to a consideration not relevant to the exercise of the discretion. 

38.  Given the attitude of the respondent to the contact between Mr Tang and Ms Chan, it may be necessary for the Court of Appeal to investigate what the applicant’s instructions were to his former solicitors and how those instructions were carried out by them.  The applicant has indicated he is willing to waive legal professional privilege and so I have directed that Mr Tang and Ms Chan file affirmations setting out all the contact they had with each other and their respective understanding of the purpose and effect of that contact.  I have also directed that they make themselves available at the hearing of the appeal so that they can give oral evidence should that be felt necessary.

39.  In respect of the subsequent conduct of the applicant in failing to plead guilty to the section 119 offence at committal or to indicate such a plea in the Case Management Questionnaire, I am of the view that it is reasonably arguable that this conduct is explicable by the stance adopted by the prosecution in repeatedly refusing his offer to plead to this alternative, if that is how the communication between Mr Tang and Ms Chan is ultimately viewed.   

Disposition

40.  For these reasons I granted the applicant leave to appeal on the issue of the sentencing discount that the applicant should have been awarded for his guilty plea.  In order for the applicant to properly argue his appeal I granted him an Appeal Aid Certificate in respect of his appeal, under Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221.

[1]  HCCC266/2012, unreported, 15 October 2013.

[2]  Appeal Bundle, pages 43-44.

[3]  Appeal Bundle, pages 45-49.

[4]  Appeal Bundle, page 42.

[5]  In HCCC327/2012, he posed as a recruiting agent for a modelling agency.  His appeal against conviction and sentence was dismissed by the Court of Appeal.  See HKSAR v Lam Kai Man [2014] 5 HKLRD 871, which has been incorporated into the Appeal Bundle.

[6]  Appeal Bundle, pages 32-37.

[7]  Appeal Bundle, page 31.

[8]  Appeal Bundle, page 14N-Q

[9]  Appeal Bundle, pages 11U-12I.

[10]  [2020] HKCFI 214

[11]  [2016] 5 HKLRD 1

[12]  Appeal Bundle, page 57M-N.