HKSAR v. CHOW YUEN FAI

CACC 392/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 392 OF 2008

(ON APPEAL FROM HCCC NO. 81 OF 2008)

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J U D G M E N T

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HON MA CJHC (GIVING THE JUDGMENT OF THE COURT) :

1.  On 8 December 2009, this Court dismissed the Applicant’s application for leave to appeal against an overall sentence of 11 years’ imprisonment for various offences (10 counts in all) of homosexual buggery with boys aged 13 and 12, indecent assault, making child pornography and possession of child pornography. This sentence was maintained notwithstanding that the Court was of the view that the overall sentence ought to have been 12 years 8 months.

2.  Before us this morning is an application under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484 for a certificate that three points of law of great and general importance were involved in our decision.  The application was made by a Notice of Motion dated 22 April 2010 (originally five points were raised; two have since been abandoned).

3.  However, the first matter that has to be considered is whether an extension of time should be granted to enable the application to be heard.  Under Practice Directions 2.2 and 4.3, applications for a certificate under section 32(2) of the Ordinance must be made within 7 days of the handing down of the relevant judgment.  In the present case, the application ought accordingly to have been made by 15 December 2009.  Instead, it has been made over 4 months out of time.

4.  Affirmations from the Applicant and his solicitors have been provided, seeking to explain the delay.  In our view, no satisfactory explanation has been provided at all as to why the 7‑day deadline imposed by the Practice Directions was not adhered to.  In fact, in neither affirmation is there even a reference to the Practice Directions.  Both affirmations indicate a somewhat leisurely approach being taken as to time : counsel read the judgment before the Christmas vacation but by the time the Applicant was consulted over the possibility of an appeal to the Court of Final Appeal, it was already mid‑February 2010.  A month later, the Applicant gave instructions to his lawyers to appeal.  The application was made a month after that.  There had been approaches to the Legal Aid Department to consider instructing counsel who specialized in constitutional law, but this did not materialize.

5.  We are not satisfied with the explanations that have been advanced and in our view, the extension of time is refused.

6.  It therefore becomes unnecessary to consider the questions that have been articulated as constituting questions of great and general public importance.  However, for the sake of completeness, we would briefly deal with this aspect as well.

7.  The three points are identified as follows(as further amended by Mr McGowan this morning) : ‑

“1. Whether, given the Court of Appeal’s decisions in LEUNG T C William Roy v SECRETARY FOR JUSTICE [2006] 4 HKLRD 211 and HKSAR v LEE KIN SAN (CACC 111/2006), and the principles of equal treatment under The Bill of Rights Ordinance Articles 1, 10 & 22 and The Basic Law Article 25, courts sentencing for offences under Section 118C of the Crimes Ordinance Cap 200 where the victim is aged between 13 and 15 yearsshould take into account the maximum sentence of 5 Years for an offence of ‘Sexual intercourse with a girl under 16’ under Section 124, notwithstanding the current statutory maximum sentence.’

2. …..

3. In a ‘sexual’ case particularly one involving ‘vulnerable’ witnesses, is it correct to state that ‘the one third discount is usually to be regarded as the high watermark for pleading guilty in good time’ thereby providing no incentive to, or recognition for, a Defendant who pleads guilty in advance of the trial date.

4. Given the principle of consistency in Sentence, to what extent can an Appellate Court, on an Appeal against Sentence, confirm or impose sentences whose length is not in accordance with ‘the practice prevailing at the time the offence was committed.’

  5.    …..”

8.  The first question seeks to raise a point of sentencing principle.  It was dealt with in our judgment in some detail : see paragraphs 32 to 33.  It seemed to this Court at the hearing of this appeal (and this remains our view now) that what the Applicant was attempting to argue was effectively to have section 118C of the Crimes Ordinance, Cap. 200 declared unconstitutional and rendered inapplicable (insofar as it prescribed the sentence of life imprisonment for the offence of homosexual buggery with a man under 21 years) but without any form of challenge to the constitutionality of that provision itself.  Before the hearing of the appeal, the Applicant and the Respondent had been invited by letter to consider such a challenge but this was rejected.  In these circumstances, notwithstanding that there appears to be some support from another decision of this Court (namely HKSAR v Lee Kin San, unreported, CACC 111/2006) and a decision of the Court of First Instance (HKSAR v Ricki Ki, unreported, HCCC 286/2008), the point is in our view unarguable in the absence of a constitutional challenge.  We put it no higher than the two cases “appears” to provide some support, since the ratio decidendi of the two cases is not entirely easy to identify.  In any event, in those cases, there was no consideration by the court of the aspect of the making (or lack) of a constitutional challenge.

9.  The second question advances the proposition that, particularly in cases of sexual offences involving vulnerable witnesses, a sentencing court ought to consider giving more than the standard one‑third discount on the sentence where an accused pleads guilty.  In our view, insofar as it is suggested that where exceptional or special circumstances exist, a court ought to consider giving more (or, in some cases, less) than the one‑third discount, this proposition is consistent with what we had said in our judgment, namely, that the one‑third discount is “usually” to be regarded as the high watermark of the discount for pleading guilty in good time : see paragraph 31 of the judgment. Inasmuch as the proposition seeks to advance a contention that in all such cases, or in most cases, more than one‑third should be given, there is no authority nor any basis in principle for it.  Exceptional or special circumstances may exist in many cases involving sexual offences, but this category of offence does not by itself merit or constitute special circumstances.  In his written submissions, Mr McGowan sought to buttress his contention by reference to a proposition that where an accused could obtain the full one‑third discount even if he pleaded guilty on the first day of trial, it followed that any indication of pleading guilty before then should attract more than a one‑third discount.  He relies on a passage in Cross and Cheung Sentencing in Hong Kong (5th edition) at 279.  This proposition is, however, not entirely made out when one looks at the case cited in the textbook : HKSAR v Lo Chi Yip & Another [2000] 3 HKLRD 270 at 276.  In the present case in any event, no exceptional or special circumstances existed to justify more than the one‑third discount given to the Applicant.

10.  The third question relates to the sentence that this Court considered appropriate in relation to the buggery and, as we were reminded, one of the indecent assault offences.  It is said by Mr McGowan that they were not in accordance with the sentencing practice prevailing at the time the offences were committed.  While we fully agree with the approach that the sentencing court can only impose a sentence that prevailed or was within the range of sentences prevailing at the time an offence was committed, where, as in the present case, no sentence or range of sentences that prevailed at the material time can easily be identified, this principle has no application. Some decisions on sentencing for buggery and indecent assault were referred to us at the appeal, but, as our judgment makes clear, they were distinguishable and indicate no general or standard range of sentences for these offences.  In our view, this question therefore does not arise out of our judgment at all.

11.  For these reasons, the application is dismissed.