HKSAR v. CHEUK YUNG KAN AND ANOTHER

CACC 203/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 203 OF 2007

(ON APPEAL FROM DCCC NO. 1173 OF 2006)

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BETWEEN

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JUDGMENT

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Hon Tang VP:

1.  The 1^st and 2^nd applicants were jointly charged with burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.  After the 2^nd applicant’s arrest, he agreed to assist the prosecution and testify against the 1^st applicant.

2.  On 14 February 2007, the 2^nd applicant pleaded guilty and was sentenced to 2 years’ imprisonment.  He was given leave to appeal by Yeung JA on 14 November 2007.

3.  In relation to the 1^st applicant, he was convicted after trial before Deputy District Judge Thomas and sentenced to 3 years’ imprisonment.

4.  On 28 January 2008, he was refused leave to appeal by Yeung JA.  As was the practice, he was told by Yeung JA that he could renew his application for leave to appeal within 14 days.

5.  On 6 February 2008, the 1^st applicant renewed his application for leave to appeal but in relation to sentence only.

6.  Today the 1^st applicant informed us that he has enlisted the help of lawyers acting on a pro bono basis, to consider whether he might appeal against conviction, and he wished an adjournment in order for such advice to be obtained.  As explained, we are only concerned with his application for leave to appeal against sentence.  There is no application for leave to appeal against conviction, and there is no reason why we should grant an adjournment.  In any event, he was refused legal aid as long ago as September 2007.  If he had wanted pro bono legal advice, he should have sought them earlier.  Furthermore, there is a co-defendant in this case, and the usual practice of this court is to deal with all the defendants at the same time.  The 2^nd defendant is due to be released on 6 October 2008 even if his application regarding sentence were unsuccessful, an adjournment at such a late stage would be unfair to him.  So for all these reasons, we would not agree to an adjournment.

7.  Returning to the application for leave to appeal against sentence, the facts are simple and not in dispute.  In the morning of 27 March 2005, one Chi Chung-lin (“Chi”), the occupant of Room E, 22^nd Floor, Block 17, South Horizon, Aberdeen (“the premises”), left the flat secured but unattended.  Between 12:20 pm and 12:30 pm the same day, the two applicants went to the building and some of their movements were captured by the CCTV installed at the building.  Also a Mr Tse Kai-wah (“Tse”), a neighbour of Chi, later saw the two applicants on the 22^nd Floor of the building.  Tse heard from his flat that the applicants were talking at the corridor of the 22^nd Floor, and then he heard loud banging sound from outside his flat.  Later the 2^nd applicant was seen leaving the building first at about 1:03 pm via LG2 level.  At approximately 1:07 pm, the 1^st applicant was seen leaving via the ground floor lobby carrying two bags.

8.  Chi, upon her return, found that the premises had been broken into, she found a crowbar and a screwdriver in the living room.  All together about $154,000 worth of valuable items were lost.  None of it has been recovered.

9.  The 2^nd applicant provided his version of the burglary to the police in the form of a non-prejudicial statement.  In that statement, the 2^nd applicant said he and the 1^st applicant prised open the iron grille and wooden door with a screwdriver and a crowbar.  It was on that basis that the prosecution opened its case.

10.  In his evidence, however, the 2^nd applicant placed the entire blame for the burglary on the 1^st applicant, although he admitted that he had taken part in the burglary, his only involvement was to act as a lookout.  That was not what he had told the police in his non-prejudicial statement.

11.  The Deputy District Judge sentenced both applicants on the basis that they were equally culpable.  Although he made no finding as to which of them had entered the premises and who had acted as a lookout, he was satisfied that both of them committed the burglary, and adopted a starting point of 3 years’ imprisonment.

12.  Insofar as the 1^st applicant seeks leave to appeal against sentence, we have no doubt that the learned judge has adopted the appropriate starting point.  In adopting the starting point of 3 years, he followed the decision of AG v Lui Kam-chi [1993] 1 HKC 215, where the Court of Appeal held that the correct starting point for sentence in a burglary of domestic premises committed by a first offender of full age is 3 years’ imprisonment.

13.  The 1^st applicant has told us he has young children and his wife has just given birth.  It is unfortunate that they would not have the care of a father because the 1^st applicant is in prison.  But that is not a good reason to reduce his sentence.  The 1^st applicant should have thought about his family before he committed the offence.

14.  I should also mention that the 1^st applicant also claimed that he had approached the police to provide them with the information about the 2^nd applicant, but the information disclosed by the 1^st applicant was not of particular assistance to the police.  We see no reason why he should be given any deduction.  His application for leave to appeal against sentence is refused.

15.  In relation to the 2^nd applicant, he pleaded guilty and was given the usual discount of one-third.  He had also given evidence against the 1^st applicant.  The learned judge, however, gave him no further discount.  He said that the 2^nd applicant had “falsely endeavoured to put the entirety of the blame on [the 1^st defendant]”.  He found the 2^nd applicant to be a “garrulous witness … and it is abundantly clear that he was at times a man of evasion and half-truths, if not complete untruths”.

16.  A defendant who has given useful information to the prosecution and given evidence is normally given a discount of up to 45%.  In HKSAR v Chan Sau-hing and Anor, CACC 211/2001, unreported, dated 13 November 2002, Cheung JA said (in para. 30) that in such a case, an accused is entitled to expect a further reduction in sentence:

“30.   … because of his willingness to give evidence against the co-defendants. Unless it can be demonstrated clearly that a certain aspect of his evidence is totally different from what is contained in his witness statement, we are of the view that the usual 45% to 50% discount should be given. Judges should be circumspect in disallowing the proper discount.”

17.  It is true that the judge had not found the evidence of the 2^nd applicant useful and that he had departed in material respects from his non-prejudicial statement.  However, we do not believe that the learned judge had given sufficient weight to the fact that by giving evidence, the 2^nd applicant has exposed himself to certain risks.  Moreover, this is not a case where a defendant departed from his evidence in order to favour the person against whom he had been called to testify.  It is of course wrong that he should have tried to shift all the blame on the 1^st applicant.  He should have simply told the truth.  But from the sentencing point of view, the fact that he has given evidence for the prosecution should carry some weight.

18.  Ms Alice Chan, SGC of the counsel, in her helpful submission said that in view of the circumstances, the 2^nd applicant was still entitled to some discount in his sentence, for his cooperation with the authority and his testifying against the 1^st applicant.  I agree.

19.  The 2^nd applicant was convicted of another burglary on 18 April 2006 for which he was sentenced to an imprisonment for 28 months.  It appears that, however, that he was due to be released on 16 June 2007.  In respect of the present offence, he was sentenced on 7 June 2007.  And to that extent, his new sentence of 24 months overlapped with his previous sentence of 28 months, when it would normally have been ordered to be served consecutively.  But the overlap is small, and I would disregard it.  Having regard to the fact that he had given evidence against the 1^st defendant, I believe in the circumstances a further discount should be given.  I would allow his appeal and reduce his sentence to 21 months.

Hon Wright J:

20.  I agree with the judgment given by Tang VP.