HKSAR v. MA MING

[English Translation – 英譯本]

CACC 23/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 23 OF 2012

(ON APPEAL FROM DCCC NO. 778 OF 2011)

________________

J U D G M E N T

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

Introduction

1.  The applicant Ma Ming pleaded guilty before Deputy District Judge Joseph To (“the trial judge”) to one count of conspiracy to aid, abet, counsel and procure the transfer to another travel documents (the 1^st charge) and one count of aiding, abetting, counselling or procuring the transfer to another a travel document (“the 5^th charge”).  He was sentenced to a total term of imprisonment of three years.  The trial judge took four and a half years and two years as the respective starting points of the two charges, and then reduced them by one third to three years and 16 months respectively on account of the applicant’s pleas of guilty.  The sentences were ordered to run concurrently, making a total sentence of three years.

2.  The applicant felt aggrieved at the sentence of the first charge, the conspiracy charge and, with Mr. David Ma of counsel acting for him, applied for leave to appeal against the sentence.

Prosecution case

3.  On 30 April 2011, someone placed an advertisement on the Oriental Daily News, offering to buy passports and left a contact telephone number.  Subsequently, an undercover officer made a call at that telephone number and told the person on the other side of the phone (Mr. Wong) that he wanted to sell his HKSAR passport. Mr. Wong arranged with the undercover officer to meet [each other] at 6 p.m. on the same day in a male toilet at the Sheung Shui station of the MTR.  The undercover officer met the applicant at the appointed location and handed a HKSAR passport to him, who paid $1,000 to the undercover officer as the price for buying the passport.  Upon the completion of the transaction, the applicant left the toilet and at that moment he was arrested by law enforcing officers, who were waiting outside the toilet.  Apart from the HKSAR passport, which was the subject-matter of the transaction, the officers found in the applicant’s backpack another passport, the holder of which was Tang XX.  The younger brother of Tang XX admitted that he sold Tang’s passport to the applicant for $600 without his elder sister’s consent.

4.  Having been arrested, the applicant admitted to the police officers that he, at the bidding of Ah Kun, placed [an] advertisement on [a] newspaper, offering to buy passports at the price of $700 to $1,000 each.  He said he could earn a reward of RMB 200 for each passport.  He said that within two to three months he acquired ten odd passports, which he gave to Ah Kun, who then took them to the Mainland for sale.  This confession formed the factual basis of the 1^st charge, the conspiracy charge, against the applicant.

5.  The applicant was 42 years old.  He had two previous convictions, which were about offences of a nature different from that of this case, but both involved dishonesty.  He had been sentenced to imprisonment of the terms of six months’ and eight months.

6.  The applicant had divorced and remarried.  He has two step children, who are six and seven years old respectively.

7.  He emphasized that he was not the mastermind and that it was for financial reasons that he committed the offences.  He said he pleaded guilty on his own initiative and was remorseful, and he asked for leniency.

Sentences passed by the trial judge

8.  The trial judge considered that arrangements between Hong Kong and other countries concerning visa-free entry for tourism were constantly increasing, that Hong Kong had the duty to ensure that HKSAR passports would not fall into the hands of criminals, and that therefore the sentences passed by the court should have a deterrent effect.

9.  The trial judge placed emphasis on the fact that the applicant conspired with another person to abet and procure over just a short period of time from ten odd people the transfer of passports to the applicant, and that the passports were then taken to the Mainland for sale to make a profit.  The element of cross-boundary crime in the present case made it a more serious one among this kind of cases.

10.  The trial judge commented that the way in which the applicant perpetrated the crimes was not stupid, and that even if he was not the mastermind, he played animportant role in this case.

11.  The trial judge held that the appropriate starting points for the 1^st and the 5^th charges were respectively four and a half years and two years.  He reduced the terms by one third to three years and 16 months by reason of the applicant’s guilty pleas, and ordered that the two sentences be run concurrently, making a total sentence of three years.

Grounds of appeal

12.  Mr. Ma pointed out that the Court of Appeal had not laid down any sentencing guideline for this or similar kind of cases, but he stressed that the usual starting point for the offence of transfer to another a travel document was 12 months’ imprisonment.

13.  Mr. Ma agreed that the culpability of a person who tempted people with money to sell their passports ought to be higher than that of someone who just sold his passport, but he argued that the starting point should not be as high as four and a half years.

14.  Mr. Ma submitted that in HKSAR v Cheung Wai Ming (CACC 32/2005) the defendant bought a HKSAR passport from a law enforcing officer who went undercover, and was charged with a single count of aiding, abetting, counseling or procuring the transfer to another of a travel document.  He pleaded guilty and was sentenced to 26 months’ imprisonment.  The Court of Appeal said that while the starting point (equivalent to three years and three months) from which the sentence of 26 months was arrived at was not, in so far as a single passport was concerned, manifestly excessive, it might have been on the high side.

15.  Mr. Ma averred that the applicant’s culpability was more or less on a par with that of the defendant in Cheung Wai Ming.  He further said that if the case had something to do with a syndicate engaged in buying and selling passports, the actual number of passports involved was not the most material consideration.

16.  Mr. Ma pressed the point that the applicant became charged with the 1^st charge as a result of his cooperation with the police and his frank confession.  He submitted that for this reason the applicant was entitled to a further discount over and above the one third discount.

Discussion

17.  The further discount argued for by Mr. Ma was a discount in addition to the one third discount.  In his written submission Mr. Ma did not provide any authorities which could support his argument.  Later, at the behest of the court, a number of cases were submitted by the parties, which showed that there were occasions on which the court had exercised its discretion to give more than a one-third discount in the case of a defendant who voluntarily confessed and pleaded guilty to certain offences notwithstanding a lack of evidence from the prosecution to link the offences to him.  The authorities submitted by the parties included SJ v Tsui Kim-ming Simon CAAR 4/1997, HKSAR v Ng Wing Chung CACC 176/2005, HKSAR v Tsang Kai On CACC 79/2010 and HKSAR v Hui Chi Tong CACC 414/2007.  In these cases the defendants frankly disclosed the details of the commission of certain crimes and made a clean breast of their guilt.  Had they not done so, the prosecution had no evidence against them at all.  As a result, after they pleaded guilty they were given a discount of more than one third.  There was no hard and fast rule as to the extent to which the further discount should be made, but it was not more than several months.  In a case in which the starting point was more than ten years, the extent of the further discount was only six months.

18.  Where a suspect under arrest voluntarily discloses to a law enforcing authority the details of his commission of certain crimes, so that the authority obtains evidence of his guilt, that certainly is an element of leniency.  In R v Ellis (1986) 6 NSWLR 603 the Supreme Court of New South Wales called this element a significant added element of leniency.

19.  In paragraph 25 of the judgment of Hui Chi Tong the Court of Appeal said:

“But for the voluntary confession, the applicant would not have been found guilty of (the) 1^st charge. Such voluntary admission, coupled with a plea later, showed genuine remorse. It is in the public interest to encourage an offender to ‘own-up’ to his misdeed and to face the consequence. The most effective way of giving encouragement is to give a greater than (the) normal discount upon a plea.”

20.  In Tsang Kai On, the Court of Appeal made similar comments in paragraph 14 of the judgment:

“That the applicant still voluntarily pleaded guilty notwithstanding a lack of sufficient evidence from the Prosecution showed that he was genuinely remorseful. In these circumstances, the court should give a further discount to the applicant as an encouragement. This is also in the public interest…”

21.  In the above cases the court did not indicate by how much more the sentence should be reduced when giving this further discount.  In Ellis, the Supreme Court of New South Wales remarked that “the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”[1]

22.  However, from a practical point of view, it is surely no easy matter to decide in individual cases how much the further discount should be according to the above-mentioned criterion.

23.  Since the mid 1990s the courts in Hong Kong have adopted the sentencing policy that if a defendant enters a timely plea of guilty, as a rule he is entitled to one third discount on the sentence he would otherwise receive. In HKSAR v Chui Chi Wai & Another (No. 2) [2000] 1 HKLRD 704, the Court of Appeal had this to say on page 707 E-F:

“Since the decision of R v Ng Wing Kwong (unrep CACC 62/1995) in 1995, this Court has on a number of occasions in recent years pronounced that a full one-third discount is the norm rather than the exception for a timely plea of guilty and it is only in exceptional circumstances that a lesser discount than one-third should be given.”

24.  The theoretical basis of the principle of giving a discount to a defendant on his sentence who timely pleads guilty was examined by the High Court of Australia in R v Cameron [2002] 187 ALR 65. The significance of a plea of guilty was explained by Gaudron, Gummow and Callinan JJ in their joint judgment as follows:

“It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v R it was said:

‘... a plea of guilty is ordinarily a matter to be taken into account in mitigation: first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial ...’

It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty.  The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.”

25.  Kirby J went further and clearly stated on page 81:

“... The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner’s resolve to avoid repetition of such conduct in the future and as an example to others. However, ‘remorse’ is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight.

The main features of the public interest, relevant to the discount for a plea of guilty … include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service...

… it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt.  Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held.  It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws.  A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered.  Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence.”

26.  If unfruitful contest, delay and unnecessary expense of resources can be avoided, so that the court’s time can be allocated to cases which warrant more of its attention, thus ensuring that judicial proceedings will proceed more expeditiously and more efficiently, then giving the defendant who timely pleads guilty a one third discount is a policy decision which serves the public interest.

27.  A discount of one third is quite a substantial discount.  One of the main purposes of the court giving this one third discount to a defendant who pleads guilty is to encourage a guilty person to own up to the crimes he committed, so as to conserve the resources of the community and to ensure that justice can be administered more efficiently and matters can be concluded in the most expeditions manner.

28.  Difficulties and disputes may arise in carrying out this policy of giving a one third discount and in deciding what a timely plea of guilty is.  Since there is a period of time between the moment when a suspect is put under arrest and the time when he appears in court to face the charge or charges, what happened during that period of time and the attitude taken by the suspect might influence the sentencing decision.  If the court has to take into account all these factors before passing sentence, not a few disputes may arise and the sentence that will be passed ultimately would become uncertain.  To give one example: Is a defendant who admits his guilt forthwith at the outset and cooperates with the prosecution entitled to a larger discount on his sentence when compared with a defendant who makes up his mind to plead guilty only when the trial begins?  Many people will think that the answer is yes and, on the face of it, it seems reasonable. However, in order to put this kind of thinking into practice, the court may very likely have to go into fine distinctions and subtle differences between different cases and adjust the sentences according to such niceties and subtleties.  Such an approach would lengthen and complicate the court proceedings, increase costs, adversely affect court efficiency and delay the handling of cases which genuinely require the court’s attention.  It not only goes contrary to the policy and basic objective of giving a one third discount, but is also against public interest.

29.  In view of this, when giving the one third discount the approach taken by the court is a firm and broad-brush approach.  It gives a defendant who timely pleads guilty the one third discount, which is substantial, without regard for niceties, in order to discourage excessive arguments and to prevent wasteful use of the resources of the community.

30.  In SJ v Lee Chun Ho Jeef [2009] 6 HKC 471, this court gave a clear exposition of this stance.  At A-C on page 44 [sic] 7 of the judgment the Court of Appeal pointed out that:

“The Court of Appeal have repeatedly emphasized that the one-third discount ‘is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time.’ The respondent’s co-operation with the police referred to by the judge was his admission of the offence to the police, both at the scene of the crime and at the police station. Such a ‘co-operation’ is just part and parcel of the respondent’s admission of his guilt, albeit at the first available opportunity. This mitigating factor should be subsumed within the one-third discount.”

31.  The applicant cooperated with the police and after he was arrested he frankly confessed.  This led to his being charged with the 1^st charge.  We are of the view that this factor should also be subsumed within the one third discount, and should not be treated as a reason for giving any discount more than one third. Otherwise, it would be in conflict with the policy and purpose of giving the one third discount.  Not only would it create uncertainly but also it would give rise to disputes, and so it is against public interest.

32.  When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which support the charge or charges and therefore make minor adjustments to the total sentence.  To this we do not object.  However, this factor does not support the argument that this kind of defendants must be given a further discount over and above the one third discount.  If the court does not give such defendants any discount in addition to the one third discount, that does not constitute an arguable ground of appeal.

33.  In giving the one third discount to the applicant upon his pleading guilty, the trial judge had already taken into account the applicant’s cooperation with the police, his voluntary confession and his guilty plea entered in court.  That he was denied a further discount in addition to the one third discount cannot constitute a reasonable complaint, nor can it be a ground of appeal against sentence.  This ground put forward by Mr. Ma is not substantiated.

34.  We agree with the trial judge’s view that the illegal selling of passports belonging to others is a serious crime.  The people who buy other people’s passports will certainly use such passports which they obtained by illegal means for doing something illegal, including serious crimes.  Therefore, a person who helps, in whatever manner, other people to unlawfully obtain passports belonging to others indirectly helps those people to commit crimes.

35.  The trial judge correctly pointed out that in recent years tourism arrangements between Hong Kong and other countries concerning visa-free entry were constantly increasing.  The court has the duty to deter commission of crimes in this area, so as to safeguard the integrity and reliability of the HKSAR passport.

36.  We do not agree with Mr. Ma’s argument that the number of passports involved is immaterial.  In paragraph 6 of the judgment of Cheung Wai Ming, the Court of Appeal specifically underscored the fact that the sentence in that case was passed on the basis that only one passport was involved.  The necessary implication must be that if more than one passport was involved, the sentence should have been heavier.

37.  Ten odd passports were involved in this case.  If all these passports got into the hands of criminals, the community and the integrity and reliability of the HKSAR passport would have been adversely affected to a considerable extent.  As far as the 1^st charge is concerned, the four and a half years starting point adopted by the trial judge was not lenient, but having considered the facts of the case and the modus operandi of the applicant, it was not manifestly excessive.

Conclusion

38.  In our judgment, the total sentence of three years was appropriate and was not manifestly excessive.  We accordingly do not grant the applicant leave to appeal against sentence.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.

[1] As to how the principle in Ellis was applied in recent years in Australia, reference can be made to Ryan v The Queen (2001) 206 CLR 267 p.271-3; Lewins v The Queen (2007) 175 A Crim R 40 p.44-45 and S v The Queen (2008) 186 A Crim R 505 p.508-9.