CACC 250/2007
[2021] HKCA 463
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 250 OF 2007
(ON APPEAL FROM DCCC NO 1020 OF 2006)
_______________
HKSAR
Respondent
v
SIU SIK KWAN (蕭式坤)
Applicant
_______________
Before: Hon Zervos JA in Court
Date of Hearing: 31 March 2021
Date of Judgment: 31 March 2021
________________
J U D G M E N T
________________
1. This is an application for leave to appeal out of time against a sentence of 5 years and 9 months’ imprisonment which was imposed on the applicant by Deputy District Judge Bina Chainrai (the judge) on 27 July 2007, following his conviction after trial in his absence of two charges of trafficking to Hong Kong in persons, contrary to section 129(1) of the Crimes Ordinance, Cap 200 (Charges 9 and 17), one charge of controlling another person for the purpose of prostitution, contrary to section 130(1)(b) of the Crimes Ordinance (Charge 18), and one charge of conspiracy to live on the earnings of prostitution, contrary to sections 137(1), 159A and 159C of the Crimes Ordinance (Charge 19).
2. The application has been in effect rendered nugatory because the Chief Executive has issued a warrant for the remission of the applicant’s sentence on medical grounds. As a consequence, the applicant is not present at the hearing of this application. However, his application is still current as he has not abandoned it.
3. An applicant has the right to be present at the hearing of an application for leave to appeal unless the Court considers it necessary “in the interests of justice or public order or security”, to order otherwise. This is provided under section 83U of the Criminal Procedure Ordinance (Cap 221). Clearly, in the circumstances of this case, it is in the interests of justice to deal with the application in the absence of the applicant.
The procedural history
4. The applicant was one of six defendants who were variously charged with a total of 20 charges in relation to the trafficking of women from mainland China into Hong Kong for the purposes of prostitution. The applicant was initially brought before the Magistrate’s Court on 7 August 2006 and remanded in custody. On 25 September 2006, he was granted bail upon review. The case was transferred to the District Court and he pleaded not guilty to the charges he faced. The trial was fixed to commence on 17 May 2007. On the eighth day of the trial, namely, 29 May 2007,[1] the applicant failed to attend the court hearing. On the same day, a warrant of arrest was issued against him by the judge.
5. The judge proceeded with the trial in the absence of the applicant because she was satisfied that the applicant absented himself voluntarily.[2] The applicant was convicted after trial of Charges 9, 17, 18 and 19 on the Charge Sheet, and he was sentenced to 5 years and 9 months’ imprisonment on 27 July 2007.
6. Some thirteen years later, on 26 September 2020, the applicant was arrested upon entry into Hong Kong from mainland China. I am informed by Mr Jonathan Lin, for the respondent, that the applicant claimed under caution that he had absconded to mainland China to take care of his wife, despite having been fully aware of the proceedings against him in the District Court. He claimed that he had been arrested and imprisoned in mainland China for the offence of “transporting others across the border illegally”. He said that in 2014 he was released from prison and thereafter continued to live in mainland China. He decided to come back to Hong Kong because he was suffering from cancer and wanted to seek medical treatment.
7. On 30 November 2020, the applicant applied for leave to appeal against his sentence out of time.
8. On 23 March 2021, the applicant was convicted of failing to surrender to custody without reasonable cause contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance (Cap 221) and was sentenced to 4 months’ imprisonment, 2 months of which was to run consecutively to the sentences imposed in the present case.
9. On 29 March 2021, the Chief Executive remitted the remainder of the sentence of the applicant on medical grounds under Rule 148(2) of the Prison Rules, (Cap 234A), made under the Prisons Ordinance (Cap 234) and Article 48(12) of the Basic Law.[3]
The reasons for sentence
10. The judge found the applicant had played a vital role in the operation of bringing into Hong Kong illegal female immigrants from mainland China for the purposes of prostitution. The illegal immigrants were brought to the applicant’s premises after landing in Hong Kong and it was he who then informed them that they had to work as prostitutes. The judge found that this was a well-organised operation and the applicant controlled where the girls were taken for prostitution.[4]
11. The judge adopted a starting point of 2 years and 6 months’ imprisonment for each of the charges of “trafficking to Hong Kong in persons” (Charges 9 and 17). She enhanced each sentence by 50 percent to reflect the seriousness of the organized crimes of trafficking in women for prostitution.[5]
12. In respect of the charge of “controlling another person for the purpose of prostitution” (Charge 18), the applicant was sentenced to 3 years’ imprisonment.[6]
13. In respect of the conspiracy charge (Charge 19), the applicant was sentenced to 2 years’ imprisonment.[7]
11. Taking into account the totality principle, the applicant was sentenced to 5 years and 9 months’ imprisonment in total.[8]
The grounds of appeal
14. In his home-made grounds of appeal, the applicant, in an affirmation dated 19 November 2020, complained that he should have been entitled to enter a plea of guilty to the charges, and if he was so allowed, he would have received a one third discount to his sentence. He said that he had left Hong Kong for mainland China because he needed to take care of his mother aged 70 and his daughter aged 13.
Discussion
15. The applicant provides no explanation for the delay in filing his application for leave to appeal his sentence, although I would imagine he would say that he has been out of the jurisdiction throughout this time and only recently returned to Hong Kong. However, this is neither a reasonable nor satisfactory explanation for the inordinate delay in making this application. He chose to absent himself from his criminal trial and did so by leaving the jurisdiction. He clearly brought this upon himself.
16. There is no merit to his underlying grounds of appeal. They do not make sense given that he pleaded not guilty to the charges and absconded during the course of his trial. See R v Wong Kai Kong and Anor [1990] 1 HKC 279. I can find no fault in the judge’s approach and reasoning in the sentence she imposed on the applicant.
17. It follows from what I have said that I refuse the applicant an extension of time and leave to appeal against his sentence.
(Kevin Zervos)
Justice of Appeal
Mr Jonathan Lin, SPP of Department of Justice, for the respondent
The applicant did not appear
[1] The first seven days of trial were 17, 18, 21, 22, 23 25 and 28 May 2007.
[2] Appeal Bundle, 28, at [11].
[3] Warrant for Remission of Sentence dated 29 March 2021.
[4] Appeal Bundle, 28, at [13].
[5] See HKSAR v Tam Wai Pio [1998] 2 HKLRD 949, 956H-J.
[6] Appeal Bundle, 29, at [15].
[7] Appeal Bundle, 29, at [16].
[8] Appeal Bundle, 29, at [17].