HKSAR v. CHAN SAI CHIU

CACC 213/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 2000

(ON APPEAL FROM DCCC 213 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 5 May 2000, the Applicant, aged 46, pleaded guilty in the District Court before Judge Christie to a charge of robbery. He was sentenced to three years and nine months' imprisonment against which he now seeks leave to appeal.

2. The charge related to a robbery committed on 5 January 2000 on a staircase at premises in Fuk Wa Street in Kowloon. The 54-year-old female victim, who was handicapped to an extent by a problem she had in her legs, had shortly beforehand been to her bank where she had withdrawn $15,900. She spent some of that money on a shopping expedition before returning to her home where she encountered the Applicant on the staircase. The Applicant forcefully snatched the victim's handbag and the contents which, amongst other things, then contained $15,367 in cash, by using pepper which he threw into her eyes.

3. On this basis, the judge selected a starting point of three years' imprisonment. This, we think, was too low. Mr McGowan has very properly accepted that the judge would have been justified in taking a starting point of four years' imprisonment which had been approved for a robbery, involving pepper-throwing, in R v Cheung Wai-yee CACC 388/1994 (unreported), albeit in that case there were two culprits responsible for the crime.

4. In sentencing the Applicant, the judge had this to say:

"The offence is aggravated by your choice of the victim, a frail and vulnerable woman. Your record of previous offending also demands that your sentence be elevated. Since 1992, you have three times been sent to prison for robberies before this case. Even taking into account the submissions made by your counsel as to your situation at the time you committed these offences, you are indeed a menace to society and you need to be deterred, by a higher sentence, from committing robberies again. Taking those two matters into account, the starting point I begin with is 5 years' imprisonment.

You are entitled to a discount of your sentence in one respect only, and that is for your plea of guilty. Your dispute of the facts (in a Newton enquiry) of the case does not alter that, since you were substantially successful in the sentence enquiry. The amount of the discount for your plea, in my view, should be 25 per cent of your sentence since you were caught virtually red-handed in possession of the stolen property.

The result is that your sentence for this offence is 3 years and 9 months' imprisonment."

5. Mr McGowan, on behalf of the Applicant, has maintained that valid criticism can be made of both aspects of the judge's sentencing remarks. Firstly, he submitted that, notwithstanding this court's judgment in HKSAR v Chan Pui-chi (1999) 2 HKLRD 830, the Applicant was being sentenced for his previous offences when the judge increased his original starting point of three years by 66% to five years. He contended that previous convictions cannot amount to an aggravating factor which will justify such a substantial increase above the appropriate starting point.

6. It is of course right to say that no defendant should be sentenced on his previous record alone but that does not mean that the record is irrelevant for sentencing purposes. In this case, the Applicant had acquired six previous convictions. Three of his earlier convictions were, respectively, for burglaries, robbery and woundings contrary to sections 17 and 19 of the Offences against the Person Ordinance, Cap. 212. He had received prison sentences for those offences on each occasion of up to three years. More recently, his last two convictions were for robbery. In 1992, he received a sentence of twelve months' imprisonment and, in 1995, he was sentenced to a total of five years' imprisonment in respect of two robberies.

7. The Applicant has shown by his past behaviour and failure to change his ways that the court had a duty on this occasion to protect the public from his persistent conduct. Following what this court had said in Chan Pui-chi, which it is not necessary to repeat again in this judgment, we have no doubt that the judge was fully entitled to have taken a higher starting point than he would otherwise have done provided that the starting point came within the permissible limits for such an offence. We equally have no doubt that five years was an appropriate starting point in the particular circumstances of this case.

8. There is no merit in ground 1.

9. Ground 2 attacks the judge's approach to the discount he awarded the Applicant for his plea of guilty when he allowed a discount of only 25% because the Applicant had been "caught virtually red-handed in possession of the stolen property".

10. We do not know how often we have had to emphasise that this is not a proper basis on which to reduce the discount. Miss Sin, for the Respondent, concedes that the judge in this respect had fallen into error. In HKSAR v Chu Shi-keung (2000) 1 HKC 576 at 578 which was decided some months prior to the sentence which was passed in the present case, this court made the position abundantly plain with these words:

"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.

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."

11. There were several other earlier cases in which sentiments along similar lines had been expressed. When the practice of giving reduced discounts to offenders who had been caught red-handed appeared to have continued even after these judgments, we emphasised it again in HKSAR v Lo Chi-yip & Anor. (2000) 3 HKLRD 270 (where judgment was given on 21 July 2000). In the course of that judgment, with reference to reduced discounts for being caught red-handed, (at page 277) the court said:

"The recent authorities on this aspect of sentencing are copious and the sentencing practice which used to allow for reduced discounts in cases where the offender was caught red-handed have long since been disapproved. It suffices to make reference to the case of HKSAR v Wong Ka-kuen & Another CACC 35/1998 (unreported). Even if a copy of the judgment in that case had not been provided to the sentencing judge, the topic is covered in Messrs Cross and Cheung's most excellent book of reference: 'Sentencing in Hong Kong'. The relevant passage for present purposes is concisely set out by the learned authors at p. 253 which reads:

'Yet in HKSAR v Wong Ka-keung & Another CACC 35/98, it was said that "being caught 'red-handed' is not, in the view of this court, a sufficient reason to disallow the full discount." There the matter currently rests.'

Nothing could have been clearer. If we appear to have laboured the point, it is because we can see no reason why this recurring error in the approach to discount should arise again in cases where offenders have entered pleas of guilty and are said to have been caught in the act of committing the offence in question."

12. It is apparent that the judge erred in principle in the matter presently before us by giving a reduced discount in respect of the Applicant's plea of guilty. There was no justification for departing from the usual reduction in sentence of one-third. It was most unfortunate that neither counsel in the court below pointed out this obvious slip.

13. Accordingly, we grant leave and, treating the hearing as the appeal, we shall allow the appeal to the extent of a five-month reduction to the original sentence. This will leave the applicant having to serve three years and four months to give full effect to the discount for the Applicant's plea of guilty. To this extent, the appeal is allowed.