HKSAR v. CHAN MAN KWONG PHILIP

CACC 354/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 354 OF 2006

(ON APPEAL FROM DCCC NO. 1304 OF 2005)

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JUDGMENT

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Hon Tang VP (giving the judgment of the Court) :

1.  The applicant, who was the 1^st defendant at trial, was convicted after trial of 4 charges, and was sentenced to 3 years’ imprisonment on 4 August 2006.  The principal offence was one of conspiracy to pervert the course of public justice.  The particulars of offence showed that the applicant conspired with one Sin Yin-yat (“Sin”) to pervert the course of public justice by making false representations in two affirmations by Sin that Sin had a proprietary interest in the rooftop of No. 44, Kowloon City Road, Kowloon, by adverse possession in Civil Proceedings No. 14935 of 1998.  The other charges related to the applicant aiding and abetting Sin to commit perjury in the two affirmations as well as the forgery of a purported Sale and Purchase Agreement of the rooftop.

2.  The object of the conspiracy was to enable a company called Charm Far Limited (“Charm Far”), which had entered into an agreement to purchase two properties at Nos. 42 and 44, Kowloon City Road, for HK$14 million, to claim that the vendor of those properties did not have a good title.  The applicant was a property repossession negotiator representing Charm Far to repossess the rooftop from the occupants.  The applicant persuaded Sin to claim that he had a proprietary interest in the rooftop in order to assist Charm Far in its legal proceedings with the vendor.  As a result of the claim by Sin, eventually Charm Far was able to purchase the property at the lower price of $8.3 million.  It appeared that one Chow Kit-kwong was the beneficial owner of Charm Far.

3.  Sin was the 2^nd defendant at trial, he had pleaded guilty and gave evidence against the applicant.  Eventually he was sentenced to imprisonment for 1 year suspended for 2 years, although the applicant was sentenced to 3 years’ imprisonment.

4.  On 25 August 2006, the applicant applied for leave to appeal against conviction and sentence.

5.  On 9 October 2006, the applicant informed an ICAC officer through an officer of the Correctional Services Department that he wanted to see her.  On 12 October 2006, the applicant was visited by an ICAC officer and he offerred assistance.  According to the ICAC officer, she advised the applicant to leave the matter until the completion of his appeal.  The applicant, however, requested the officer to visit him on 20 October 2006.

6.  On 16 October 2006, the applicant filed a notice of abandonment and his application for leave to appeal was marked dismissed.

7.  The applicant then told the ICAC officer that he had withdrawn his appeal and he was interviewed and a non-prejudicial statement was taken from him.  As a result of information supplied, Chow Kit-kwong was charged by the ICAC on 12 February 2007.  Between 27 August 2007 and 17 September 2007, Chow was tried in the District Court and the applicant gave evidence as PW3.  On 20 September 2007, Chow was convicted of all charges, and on 21 October 2007, he was sentenced to imprisonment for 3 years.

8.  On 7 September 2007, the applicant filed an affirmation in support of his application to treat his earlier abandonment of appeal against sentence as a nullity.  He said that he abandoned his appeal because he had to assist ICAC by giving witness statements and testifying in court.  This is what the applicant said in his home-made grounds dated 15 January 2008 :

“	(at para 2) … I took the initiative to suggest that I will assist ICAC in giving evidence against Chow Kit-kwong …… So I needed to voluntarily set aside the application for the appeal of CACC 354/06 until I finish the whole process of giving evidence.  Then I could apply for the appeal against sentence.” (Emphasis added)
“	(at para 7 of brief facts) …… During the time serving the sentence, I felt remorse and hence I assisted the ICAC in testifying against Chow Kit-kwong, the mastermind of the case.  I had to voluntarily suspend the appeal application and give up the right to apply for an earlier release on parole ……” (Emphasis added)

9.  This court has in HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1 said :

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… the only circumstances in which an abandoned appeal may be restored for hearing is if, as a matter of law, that abandonment may properly be treated as if it had never occurred, and the only circumstance in which that course is permissible is if that abandonment was in law a nullity.”

10.  The court then went on to say that :

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… the type of situations which will render an abandonment a nullity … tend to concern the applicant's understanding of the effect or consequences of the document he is signing or, perhaps, misapprehending the effect of an appeal were he to persist.”

11.  Ms Vivien Chan, appearing for the respondent, submitted that although the applicant’s home-made grounds are not very clear, it appeared that the applicant thought that he had to suspend his appeal until he had finished giving evidence against Chow.

12.  In the circumstances of this case, I believe the applicant was mistaken as to the effect of the abandonment of his application for leave to appeal.  Obviously, the applicant who wanted a reduction of his sentence and thought that he could achieve that by helping the ICAC, never intended to abandon his appeal.  So this is a case where this court may treat his abandonment as a nullity, and I would do so.

13.  The applicant advanced two points in support of his application for leave to appeal against sentence.

14.  First, the disparity between his sentence and the sentence given to Sin.  The difference is indeed substantial.  However, as the learned judge has explained, Sin had pleaded guilty and had given evidence on behalf of the prosecution which led to the conviction of the applicant.  Also Sin was obviously much less culpable than the applicant.  Indeed, a community service order was recommended for Sin.  In the end, the learned judge decided to pass a suspended sentence, taking into account the fact that Sin had been in custody for 2 months.  Thus, had this ground stood alone, I would have refused leave to appeal.  The sentence of 3 years’ imprisonment for the offences committed by the applicant could not be regarded as manifestly excessive.

15.  The 2^nd ground relied on is the assistance to the ICAC which led to the conviction of Chow.  We were told by Ms Chan that his evidence against Chow was accepted by the learned trial judge.  For such assistance, in HKSAR v Lee Yat-fan, CACC 414 of 1999, unreported, dated 30 May 2001, it was said that :

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… 17% is usually given for providing a statement against some other offender and going into the witness box to testify.”

16.  Here, a discount of 17% would result in a reduction of 6 to 7 months.

17.  The applicant has been in custody since 17 July 2006 and with the usual one-third remission for good behaviour he would be entitled to be released on 16 July 2008, which is 5 months from today.

18.  In the circumstances of this case, bearing in mind that the main culprit, Chow, was sentenced to 3 years’ imprisonment, and Sin 1-year imprisonment suspended for 2 years, I believe justice would be done if the applicant’s sentence be reduced such that he would be released immediately.  In order to accomplish that, his sentence would have to be reduced by just over 7 months.  I would grant leave to the applicant to appeal against sentence, treat the application for leave as the appeal, and reduce his sentence so that he is immediately discharged.

Hon Wright J :

19.  I agree with the order proposed by the Vice President but would add in regard to the disparity point that the mere fact that one accused received an apparently unduly lenient sentence is no ground for interfering with an otherwise proper sentence imposed on a co-accused.