HKSAR v. LO SHIU WAH

CACC 399/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.399 OF 1999

(ON APPEAL FROM HCCC 408 OF 1998)

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1. The applicant was convicted by HH Judge Poon in the District Court of one charge of theft. He was sentenced to 18 months' imprisonment and now seeks leave to appeal that sentence.

2. It was an agreed fact that the applicant was invited by two others to join together to operate a seafood restaurant in 1993. The applicant had day-to-day charge of the running of the restaurant. The two other partners contributed capital in the sum of $250,000 to the operation of that restaurant and when entering his plea, the applicant admitted theft of $40,000 of that capital. There has been no restitution.

3. Whilst awaiting trial in 1994, the applicant absconded and was re-arrested in March this year as he sought re-entry to Hong Kong at the Lo Wu Border Crossing. The Judge took as her starting point for the sentence a period of two years, basing her decision upon the amount stolen, the fact that the applicant was in a position of trust in respect of his partners, and that he took the sum of money soon after the business had started. She reduced the term of imprisonment to 18 months to reflect the plea of guilty by the applicant and his clear record.

4. There are three grounds of appeal. Firstly, that the learned Judge was wrong in adopting 24 months as the starting point which was too high; secondly, where the applicant had a clear record and voluntarily returned to Hong Kong to "face the music", the learned Judge should not have departed from the usual one-third discount in sentence; and thirdly, in the circumstances, the sentence was manifestly excessive. It is conceded by the applicant that the custodial sentence imposed upon him is not wrong in principle.

5. In respect of the first and third grounds, Mr Tong argues that the amount taken was small, being the sum of $40,000, and being some 16% of the total sum entrusted to him by his partners. He said that the money was used to pay the salaries of employees in another restaurant operated by the applicant, and that the money was taken over a short period and did not, therefore, amount to a long and on-going course of conduct.

6. Mr Shiu, on behalf of the respondent, argued that the penalty taken as the starting point by the Judge was an entirely appropriate one given all the circumstances of the case and the breach of trust.

7. In 1993, the authority most generally used in the sentencing of cases involving theft, particularly when a breach of trust was involved, was that of R v Barrick [1985] 81 Cr App R 78. At page 82 of that report, the Lord Chief Justice said :

"...The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide. Where the amounts involved cannot be described as small but are less than ￡10,000 or thereabouts, terms of imprisonment ranging from the very short up to about eighteen months are appropriate..."

That case involved breaches of trust in respect of false accounting, obtaining by deception and theft.

8. That would have been the approach which the court would have adopted in sentencing this applicant had he stood trial in 1994. The sum of ￡10,000 referred to by the Lord Chief Justice was a substantially greater sum than the $40,000 involved in respect of this matter. To reflect the difference in the sum and to reflect the fact that there were no aggravating features in this case, which in any way magnified the penalty which ought to have been considered under the authority of Barrick, we are of the view that the trial judge should, in this case, have taken a starting point of 12 months' imprisonment.

9. In respect of the second ground of appeal, the District Judge accepted, as do we, that the usual discount for a plea given at a timely period before the actual trial is embarked upon is one-third of the sentence taken as the starting point. She declined to follow that practice on the basis that the applicant had absconded from the jurisdiction, having been arrested and granted bail and had returned some five years later. She held that there was no positive act of surrender inasmuch as the applicant did nothing to advise the authorities that he was surrendering or to bring to their attention the offence for which he had been arrested. She held, for the purposes of sentence, that the applicant did no more than present himself at the Lo Wu checkpoint and seek entry to Hong Kong.

10. Mr Tong, whilst not arguing that this was a voluntary surrender, argues that credit should be given to the applicant because this was a voluntary return to Hong Kong. With this, we do not necessarily agree.

11. In the circumstances, it is significant that a considerable period of time had passed, and it is our view that in the absence of any other act by the applicant to indicate that he was surrendering, the inference to be drawn from the circumstances was that he was attempting to re-enter Hong Kong to continue his life and avoid the consequences of his previous acts.

12. In respect of the argument raised by Mr Tong that the applicant ought to have been given the full one-third discount because he is in no different position, having eventually pleaded to this matter, to any other accused who pleads guilty prior to his trial, I refer to the judgment of HKSAR v Poon Chum Kong CACC 228/99 where Keith JA said :

"The reason why so much time elapsed before his trial was because following his arrest he had been granted bail, but he had absconded by the time his trial was due to take place. His cash bail was estreated. It was said that he had gone to the mainland where he worked as a hawker, and that he was re-arrested following his return to Hong Kong. The Applicant has today claimed that he voluntarily surrendered himself to the police, but the undisputed facts are that he only admitted who he was when the police had themselves discovered his identity and had gone to his home to re-arrest him.

The judge took 12 years' imprisonment as his starting point. No criticism can be made of that. It was in accordance with the tariffs laid down in Lau Tak Ming [1990] 2 HKLR 370, in which it was said that trafficking in between 200 and 400 gms. of hard drugs such as heroin should attract a term of imprisonment between 12 and 15 years....

The critical question is whether the judge gave the Applicant a sufficient discount for his plea of guilty. The Applicant's co-defendant had been sentenced to 8 years' imprisonment by another judge in 1994 at the original trial which the Applicant failed to attend. He had pleaded guilty to the same charge as the Applicant eventually pleaded guilty to. Deputy Judge Wong assumed that the previous judge had likewise taken 12 years' imprisonment as his starting point, and had discounted the sentence by one-third to reflect the co-defendant's plea of guilty. Deputy Judge Wong decided that, because the Applicant had not answered to his bail, he should not be given the same one-third discount which his co-defendant had received. Instead, he gave the Applicant a discount of one-quarter only. In reducing the discount, Deputy Judge Wong was acting entirely in accordance with previous decisions of the Court of Appeal in Yiu Tat Choy (CA 613/97) and Choi Wing Wah [1998] 4 HKC 373.

One of us was initially concerned about that approach. A person admitted to bail who fails to surrender to custody when called upon to do so commits an offence punishable with imprisonment: see section 9L of the Criminal Procedure Ordinance (Cap.221). To deny a defendant who absconded the discount for his plea of guilty which he would otherwise have been given could be said to be tantamount to punishing him for committing that offence. He is, in effect, serving an additional sentence for having absconded when he had not been charged with that. It could be said that it was wrong to treat the defendant in a way which has the effect of him receiving an additional sentence of imprisonment for an offence for which he had never been charged.

However, any initial misgivings about that approach have now been laid to rest. The reason why the discount is reduced in these circumstances is because the plea of guilty is not tendered at the earliest opportunity. Indeed, the effect of the Applicant absconding was that there had to be a second trial. He was not therefore being punished for absconding. He was being denied the discount to which he would otherwise have been entitled because of the consequences of his absconding, namely that his plea of guilty was in the circumstances a late plea and that a second trial was necessary. If one of the justifications for giving a discount for a plea of guilty is the saving of the expense of a contested trial, that was to some extent neutralised in the present case by the expense of an albeit short second trial."

13. We accept that in the present case, no second trial was needed. However, the effect of a long delay such as five years in this case is that evidence is lost, witnesses are harder to locate and the memory of witnesses is affected by the long period of time. Greater difficulties arise in the preparation of the trial, greater work has to be done to obtain the witnesses and to prepare the matter for an effective prosecution and hearing. It is a matter which occasions the authorities and the courts greater expense and time. That being so, we are of the view that the recent judgment of Keith JA accurately reflects the position and that the trial Judge in this matter rightly reduced the one-third standard discount to one of one-quarter. A person who absconds while awaiting trial and returns after a long period of time, and then pleads guilty when he finally faces trial, cannot necessarily expect to get the same discount when finally sentenced, as he would have done if he faced trial in the first place and entered a plea of guilty then.

14. The application is therefore allowed, arising from our conclusion as to grounds 1 and 3, and the hearing of the application is treated as the hearing of the appeal. The sentence is varied to one of nine months' imprisonment.