HKSAR v. CHU SHI KEUNG

CACC520/1999

HEADNOTE

Criminal law - sentencing practice - one-third discounts usually given for timely pleas of guilty - defendants caught red-handed entitled to same discount even when the evidence is overwhelming.

CACC 520/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 520 OF 1999

(ON APPEAL FROM DCCC 758 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 4 October 1999, the Applicant pleaded guilty in the District Court before Deputy Judge Leung to a domestic burglary. He was sentenced to 2 1/2 years' imprisonment for the burglary offence and to a consecutive term of 12 months' imprisonment on a second charge, to which he also pleaded guilty, of remaining unlawfully in Hong Kong. The Applicant now seeks leave to appeal against the sentence imposed for the burglary offence.

2. The circumstances of the case were unremarkable. The Applicant was caught red-handed inside the flat he had burgled at night by the occupants who were disturbed by him. The police were called and the Applicant was found in possession of money he had stolen in the flat and the tools which he had used to get into the flat. He admitted having sneaked into Hong Kong from mainland China on 26 July 1999, and he said he had broken into the flat in order to find something to eat.

3. Although the judge said, in passing sentence, that "for illegal remaining in Hong Kong the usual sentence is 18 months, and for burglary, 3 years for a plea of guilty", we think he must have intended to say, and it is unfortunate that he did not correct himself, that 15 months is the usual sentence for unlawfully remaining in Hong Kong following a plea of guilty and 3 years' imprisonment is the usual sentence for domestic burglary, following a not guilty plea. However, this is not where the harm lies. It seems, though it is far from clear, that the judge did adopt 3 years as the proper starting point for a domestic burglary. The difficulty is with what he went on to say which he expressed in these terms:

4. Quite what the judge meant by "it carries no further weight than just a guilty plea because the evidence against you is overwhelming" is something which it is difficult positively to discern. It seems, however, that the judge was intending to convey to the Applicant that because he had been caught in the act, he would not receive the full benefit usually accorded to those who plead guilty.

5. Mr Marray, on the Applicant's behalf, submitted in his commendably brief argument that the judge should have taken a three-year starting point and reduced the sentence to two years to reflect the guilty plea.

6. All we need to say is that unfortunately this is an example of an offender being deprived of the full discount of one-third for his plea of guilty where no valid reason, having regard to current sentencing practice, had been provided for the course taken. Time and again, this court has said that when a person is caught red-handed, as this Applicant was, this does not provide a good reason for a failure to give the normal discount.

7. There are sometimes reasons for not giving a full discount on a plea of guilty, such as a failure to enter a timely plea where, for example, the defendant has unsuccessfully contested a voir dire and has only then pleaded guilty, or in some cases where he has absconded on bail. This is not intended as an exhaustive list of situations where, following a plea of guilty, a failure to accord the full discount or in extremely rare cases, any discount at all, will be applicable.

8. However, being "caught red-handed" has not for a considerable time been one of the criteria for a failure to give the normal discount for a timely plea. Counsel must know how to advise their clients when they are minded to plead guilty and, if a wide discretion is given, as Mr Joseph To for the Respondent appeared to be arguing, to judges in deciding whether or not to give a full discount for plea, counsel will understandably be unable to give sensible advice and defendants will be left with a justifiable grievance if the discount they expected to receive was not in the event given to them.

9. A classic example, amongst many, to illustrate why a person caught in the act should be afforded the full discount is provided in the many cases of trafficking in drugs where the courier is caught in possession of dangerous drugs. In this example, and in many others, it is easily alleged that the evidence has been planted or fabricated so that a true expression of remorse represented by a plea of guilty, even in circumstances where the evidence is apparently overwhelming, is still deserving of the full discount.

10. For the reasons we have given, the sentence was wrong in principle. The sentence should have been reduced from 3 years by a full one-third to reflect the Applicant's plea of guilty.

11. In the result, we grant leave and, treating the hearing as the appeal, we reduce the sentence on charge 1 from 2 1/2 years to 2 years' imprisonment. The 12-month sentence on charge 2 is not affected, so that this will continue to run consecutively, making 3 years in all. The appeal, therefore, succeeds to the extent that the overall sentence is reduced by 6 months from 3 1/2 years to 3 years' imprisonment.

Representation: