HKSAR v. CHAN SIU KIT

CACC 71, 72 and 75/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS. 71, 72 AND 75 OF 2011

(ON APPEAL FROM DCCC NOS. 325, 326 AND 340 OF 2010)

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BETWEEN

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J U D G M E N T

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

Introduction

1.  This is an application for leave to appeal against sentence in respect of sentences imposed by Judge Dufton in the District Court on 14 February 201l.

2.  There were three cases consolidated before the judge: DCCC 325 of 2010; DCCC 326 of 2010; and DCCC 340 of 2010.  Insofar as they concern this applicant they related to offences between mid-June and late August 2009.  They all related to offences revealed in the course of one continuing undercover operation.  We did wonder why there so many different cases in the District Court relating to the same applicant but we had been informed that there had been an undercover operation resulting in the arrest of 42 persons in respect of 51 separate incidents so that, in the event, there were 16 different cases launched and these three cases were amongst them.  In the event this has resulted in a rather messy conglomeration of papers before us and indeed to the suggestion, which is at the heart of this application, that the judge was misled into dealing first with each block of offences arising in each separate charge sheet rather than looking in chronological order at all the offences encompassed by the pleas to the three charge sheets and arriving at a suitable totality.

3.  It is appropriate, we think, first to examine how the matter was presented to the judge and how he dealt with it.

Case No. 325

4.  In case DCCC 325 of 2010, the applicant pleaded guilty to Charges 2, 8 and 10:

(a) Charge 2 alleged a conspiracy between 14 and 21 June 2009 to rob a man called Yau.

(b) Charge 8 alleged an offence by the applicant of possession of offensive weapons, namely, that on 20 September 2009 at his home he had in his possession six extendable batons with intent to use the same for an unlawful purpose; and

(c) Charge 10 was laid in respect of an offence of theft of a mobile telephone committed on 3 September 2009.

5.  As for the first of these three offences, the facts were that the applicant discovered that his former girlfriend was dating another man and asked two others to help him rob the man.  The applicant’s co-defendant said that he could smuggle stun guns and extendable batons from the Mainland and use them in the robbery, in response to which the applicant agreed that a baton was to be used.  A date was proposed for the robbery but the robbery in the event did not take place.  The batons were secured from the Mainland and they were found in the applicant’s home upon his arrest in September 2009.  These facts gave rise to Charges 2 and 8.  Charge 10 was in respect of an offence on 3 September 2009, when the applicant stole a mobile telephone at a party and sold it on for $2,000.

6.  The judge took a starting point of 3 years’ imprisonment for the conspiracy to rob; and, in the circumstances we shall describe, imposed a sentence of 2 years’ imprisonment after plea.  He took a starting point for possession of the extendable batons of 12 months’ imprisonment and imposed a sentence after plea of 8 months; and took a starting point of six months’ imprisonment for the theft, imposing a sentence of four months’ imprisonment after plea.  He ordered these sentences to run concurrently making a total for the offences in this particular case of two years’ imprisonment.

Case No. 326

7.  In case DCCC 326 of 2010, the applicant pleaded guilty with others to two charges:

(l) Charge 1: that on 30 July 2009 at a public car park in Yuen Long he and others unlawfully and maliciously wounded a person called Ng; and

(2) Charge 2: that on 31 July 2009 he conspired with others unlawfully and maliciously to wound a person called Chan with intent to do him grievous bodily harm.

8.  In relation to the first of those charges the facts, broadly, were that the applicant together with about 10 other men, took part in kicking and punching the new boyfriend of another man’s ex-girlfriend.  The victim suffered a laceration to his forehead.

9.  As for the second of those charges, 10 men, each armed with a water pipe, attacked another male who as a result suffered fractures to two of his fingers and, more seriously, multiple scalp lacerations.  There were six wounds to his head which required suturing.  The victim suffered no permanent disability as a result of the attack.  In the event, the applicant did not take part in the attack: he had agreed to join in the attack and had gone to the place of the attack armed with a pipe but the victim had already been attacked by the time he arrived.

10.  In relation to these two offences, the judge took a starting point of 18 months for the first, reducing it to one year on account of the applicant’s plea of guilty; and a starting point of 4 years’ imprisonment for conspiracy to wound with intent, reducing that to a term of two years and eight months’ imprisonment in the light of the plea of guilty.  He ordered those two sentences to run, concurrently with each other but ordered that two years in respect of the second offence was to run consecutively to the concurrent sentences of two years in respect of the offences covered by DCCC 325 of 2010.

Case No. 340

11.  Finally, in case DCCC 340 of 2010, the applicant pleaded guilty to the third charge which alleged that between 6 July 2009 and 27 August 2009 he conspired to wound another with intent to do him grievous bodily harm.

12.  The facts of that case were that on 6 July 2009 a man asked the applicant and others to attack a drug trafficker who had been rude to the man who became the co-defendant in this case.  The co-defendant undertook to prepare two knives, each a foot long, for use in the attack and the agreement was to chop the victim on his body and limbs but not above the neck thereby to ensure that the blows would not be fatal.  The co-defendant’s wife took the applicant and another to the building where the male resided but the attack on the proposed victim was postponed.

13.  In relation to this offence, the judge adopted a starting point of four years’ imprisonment, imposed a sentence of two years eight months’ imprisonment having given credit for the plea of guilty and ordered that two years of the sentence should run consecutively to the sentences imposed in respect of the other cases.

14.  This made a total of 6 years’ imprisonment for the offences covered by all three cases.

The Magistracy case

15.  That did not quite complete the sentencing exercise, for the judge had to decide how to deal with these sentences in the light of a sentence of 9 months’ imprisonment imposed in the Kowloon City Magistracy on 21 December 2010 for several triad related offences and one offence of possession of an offensive weapon.  The judge decided to order the 6 years’ imprisonment to run wholly consecutively to that nine-month term, so that at the end of the hearing in February 2011, the applicant faced a total term of imprisonment of 6 years and 9 months.

The complaints

16.  The first ground of complaint arises in this way.  Having decided upon the starting points for each of the offences in the three cases, the judge then moved to the question of totality.  What he said was this:

“Clearly the defendant was deeply involved in triad related matters and was more than willing, when the need arose, to participate in serious acts of violence. I am satisfied for the offences the defendant is before the court an overall starting point after trial of 9 years’ imprisonment is appropriate.

Giving full credit for the pleas of guilty the sentence to be served by the defendant is one of 6 years’ imprisonment. I am satisfied this is a meaningful discount from the maximum sentencing jurisdiction of the court of 7 years’ imprisonment, the prosecution having somewhat surprisingly agreed all three cases be heard together in the District Court.”

17.  What the judge then did was to specify a sentence for each offence and make the sentences concurrent or partially consecutive to the extent we have specified.

18.  Mr So for the applicant has presented to us today an able argument and realistically has not relied on sentences in other cases; a refreshing change in these courts where far too often sentences imposed in other cases are paraded before us in relation to cases which are highly fact sensitive. 

19.  Mr So complains, on the applicant’s behalf, that the judge has erred by looking first at totality and he has referred us to a number of cases which enjoin sentencing tribunals against approaching cases from the angle of totality first, before determining individual sentences.  This, in fact, the judge did not do; by which we mean he did not first look at totality and then divide that totality in order to reach individual sentences.  It is clear that before looking at totality, he determined the appropriate starting point for each offence and addressed the culpability of each offence correctly, in some instances – for example, the unlawful wounding and the possession of the batons for an unlawful purpose – taking what might be said to have been a relatively lenient view.  It is also perfectly clear that the ultimate sentences imposed on each offence was a sentence without regard to totality but which, rather, reflected in each instance a one-third discount for the plea of guilty.

20.  The strictly correct approach is the one, however, which Mr So urges upon us; namely, for the judge to have looked at the question of totality only after imposing sentences for each offence after plea and then assessing the appropriate totality in the light of those sentences.  We do not think however that that would have made any difference to the result.

21.  Mr So says that the 9 year totality adopted by the judge was itself manifestly excessive but, as we say, the question is whether the technically correct approach would have made a difference.

22.  The next point made by Mr So is that it was unhelpful for the judge to examine the matter in blocks as it were.  The more appropriate approach was for the judge to examine the offences chronologically; for to have done so, he argues, would more obviously have brought home to the judge the fact that these offences were discovered by the police in the course of one continuing undercover operation and that they all occurred within a matter of months.

23.  We think that there is merit in the argument, for that was the best way of assessing the true culpability overall and what in the light of that test was the appropriate totality.  The question which we have to ask ourselves is whether in the event that approach would or, more relevantly, should, have made any difference.

24.  We have ourselves conducted the exercise along the lines advocated by Mr So but we are satisfied it makes no difference to the appropriate result.

Analysis

25.  It was undoubtedly appropriate for the judge to view all the offences, save possibly those covered by Charges 2 and 8 of DCCC 325 of 2010 as warranting in principle consecutive sentences: they were quite separate.  They revealed a person steeped and eager to participate in triad violence whenever the slightest excuse presented itself; a person prepared to inflict serious bodily harm on others; planning to do so and taking part in a vicious attack on one of the occasions.  We cannot see that the overall sentence of 6 years’ imprisonment can justifiably be said to have been manifestly excessive.

26.  We have however been exercised by the question whether the total sentence of 6 years’ imprisonment should have been ordered to be served wholly consecutively to the nine-month term imposed in December 2010.

27.  We called for and now have the facts in respect of which the applicant was sentenced in December 2010, having changed his plea to guilty after an unsuccessful voir dire.

28.  These facts were before the judge below and it suffices to allude to the summary contained in the judge’s helpful reasons for sentence:

“15. The offences occurred between April and September 2009. In summary in April 2009 the defendant welcomed PW1 as his brother in the Sun Yee On triad society and promised to render him support. In May, June and July 2009 the defendant assembled as part of a group to seek revenge on others (“blowing the whistle” in triad jargon). The target of the May gathering could not be found. In June the defendant equipped himself with an extendable baton but again the targets could not be located. In July contact was made with one of the targets but attempts to lure him out failed. In September 2009 a triad meeting was held where one of the co-accused changed [allegiance] to be the follower of the defendant.”

29.  We are informed by counsel for the respondent that the offences dealt with by the magistrate were also revealed in the course of the same undercover operation as was the subject matter of the charges in the District Court; and indeed we see that the period covered by the Magistrates’ Court charges was, broadly, the same.  The reason for the fact of separate proceedings in the magistracy against this applicant is that, as we have earlier intimated, the operation resulted in the arrest of 42 persons in respect of 51 separate incidents so that, in the event, 16 different cases were launched.

30.  It follows that but for this operational exigency, the charges against the applicant in the magistracy would have been added in the District Court to the charges in the three separate cases to which we have referred and would have been heard by the judge at the same time.  It is unlikely that had that happened, the resulting sentence would have been one of 6 years 9 months’ imprisonment, a mere three months short of the District Court jurisdictional limit; although we do take note of the fact that the applicant only pleaded guilty in the magistracy after the voir dire.

Conclusion

31.  In the unusual circumstances we have described, we are of the view that the six-year term should not have been ordered to run wholly consecutively to the nine-month term imposed by the magistrate but that, rather, six months of the six-year term should have been ordered to run concurrently with the nine month term, the remainder to run consecutively, making an overall total of six years three months.  Accordingly, we grant the applicant leave to appeal against sentence, treat the hearing of the application as the appeal, allow the appeal to the extent indicated and substitute for the order made in the court below, the order we have specified.