HKSAR v. LAM KING YIN

CACC 328/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 328 OF 2012

(ON APPEAL FROM DCCC NO 128 OF 2011)

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J U D G M E N T

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1.  The applicant was convicted on four charges following his pleas of guilty before District Court Judge Eddie Yip on 17 July 2012.  He was sentenced to a total of 28 months’ imprisonment.  The applicant seeks leave to appeal against sentence out of time by a notice of application filed with the court on 17 August 2012.  An accompanying affirmation explained the circumstances which led to the application being filed a few days out of time.  The applicant also seeks leave to appeal against conviction out of time in a notice filed with the court on 30 January 2013. 

2.  Charges 1 to 3 allege that, on 4 April 2010, the applicant used a false instrument, namely a MasterCard credit card, to induce employees of three separate shops in Tsim Sha Tsui to accept it as genuine and to sell merchandise to the applicant, contrary to section 73 of the Crimes Ordinance, Cap 200.  Charge 4 alleged that, on 25 May 2011, the applicant had failed to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.  That charge related to the fact that the applicant had failed to answer his bail and report to court on that day.  In fact, the applicant was re-arrested, apparently in respect of another matter, on 1 June 2012, over one year later. 

3.  In his reasons for sentence, the judge noted that the applicant had been apprehended after the police had stopped him in the street and made inquiries of him on 4 April 2010.  He was found to be in possession of sales slips and a forged credit card.  Inquiries of the shops from whom the three sales had been made establish that the goods sold were of a total value of about $8,400.  The judge noted that the applicant was 39 years of age and was married.  His wife was then pregnant. 

4.  Having referred to various judgments of the Court of Appeal, the judge took a starting point for sentence of 30 months’ imprisonment for each of Charges 1 to 3.  For Charge 4, he stipulated a starting point of 6 months’ imprisonment.  For Charges 1 to 3, the judge stipulated that he took a reduced discount from the starting point of 30 months’ imprisonment.  He said that he did so to reflect the fact that the applicant had absconded whilst on bail for those charges.  Having referred to various judgments of the Court of Appeal, the judge stipulated a discount of 20 per cent from the starting point taken for those offences rather than the usual discount of one-third.  For Charge 4, the judge stipulated that he afforded the applicant the full one-third discount from the starting point taken for sentence.

5.  In the result, the judge sentenced the applicant to 2 years’ imprisonment on each of Charges 1 to 3, which sentences he ordered to be served concurrently.  Then he sentenced the applicant to 4 months’ imprisonment in respect of Charge 4.  Finally, he ordered that the sentences imposed in respect of Charges 1 to 3 be served consecutively to the sentence of 4 months’ imprisonment in respect of Charge 4. 

6.  At the conclusion of the hearing, the applicant sought an adjournment of today’s hearing so that he could obtain the results of a judicial review which apparently he has initiated in consequence of the Legal Aid Department’s refusal to grant him legal aid to pursue his applications for leave to appeal against conviction and sentence.  The second basis for his seeking an adjournment was so that he could obtain new evidence which apparently went to the issue of whether, and for how long, perhaps, the applicant had absconded. 

7.  There was no explanation for why that adjournment should be sought at that stage in these proceedings and I refuse the application. 

8.  Turning first then to the application for leave to appeal against conviction out of time.  In support of his application for leave to appeal against conviction out of time, the applicant has put forward a letter dated 25 January 2013.  In that letter, he accepts that he was absent from court, he says on 26 May although the charge states 25 May 2011, he accepts that his attendance was required under his conditions of bail.  He explains that absence on the basis that he was unable to attend court because his wife had suffered a miscarriage; he was not evading his legal responsibility. 

9.  The applicant says that that application was advanced to Judge Yip in a letter of mitigation that the applicant had written at the hearing of these matters on 17 July 2012.  The applicant says that, on hearing that application, the judge indicated that, in those circumstances, he could not accept a plea of guilty to Charge 4.  The case was adjourned for the applicant to confer with his legal representatives.  He said that his legal representative advised him that if he did not admit the 4th charge, it was possible that he would not be given a one-third discount for the first three charges; pleading guilty to all four charges was the most favourable mitigating factor.  As a result, he said that he allowed his plea of guilty to the 4th charge to be sustained.

10.  As it happens, there is available to the court a transcript of the proceedings before Judge Yip.  It confirms, in broad terms, what the applicant contends in terms of the initial mitigation advanced to explain his non-attendance on 26 May 2011.  Counsel advanced the matter in this way, having regard to his wife’s pregnancy and miscarriage:  “So the defendant really had no choice and the most immediate problem was to take care of the wife first and he, unfortunately, failed to turn up at the last hearing which he now deeply regrets and apologises to the court”.  The judge intervened, pointing out:  “Now, in respect of the 4th charge, there is a statutory defence based on reasonable cause”.  Noting that it had been advanced that the applicant had “no choice”, the judge said:  “So if that is the case, I’m not sure I can accept your client’s plea to the 4th charge”. 

11.  In the event, that resulted in counsel for the applicant seeking an adjournment of some 15 minutes.  In the event, proceedings resumed in eight minutes.  Counsel then informed the court:  “I’ve clarified with the defendant and his instructions is that he maintains his plea of guilty to the 4th charge and his wife’s miscarriage will not be used as a cause for defence or for mitigation”. 

12.  It is apparent on the face of the applicant’s own submissions, confirmed by the transcript, that there is no basis for a plea of nullity in respect of the applicant’s plea of guilty to Charge 4.  The very issue on which he seeks to base that plea arose at the hearing itself on 17 July 2012 and it is apparent that having been made acutely aware of the issue, the applicant determined to proceed on the basis of his plea of guilty to Charge 4.  It appears he did so in the hope that he would be afforded a reduced sentence as a result. 

13.  In all those circumstances, in my judgment, it is not appropriate to allow the applicant an extension of time in which to argue his grounds of appeal against conviction.  I refuse that application.

14.  Although the applicant conceded, in oral argument, that if he failed in respect of the argument in respect of conviction on Charge 4, he would not proceed with the application in respect of sentence, given that he accepted that he was not entitled to a one-third discount if it was determined that he had absconded, in my judgment, I ought to deal with the matter fully and I do so.

15.  The applicant’s application in respect of his leave to appeal against sentence is also out of time but only by a day or two.  The applicant has given an acceptable explanation for that.  I note that the respondent does not oppose the application and, in my judgment, it is appropriate to allow the application to proceed and I do so.

16.  The crux of the applicant’s complaint in his grounds of appeal against sentence is, as I have said, that the judge erred in not affording him the full one-third discount from that taken as the starting point for sentence in respect of Charges 1 to 3.  As noted earlier, the judge referred to a number of the judgments of the Court of Appeal in which the issue had been addressed.  As he noted, the range of reduced discount varied between one-sixth and 27 per cent.  Again as the judge noted, the justification for that approach, in principle, was addressed by Yeung JA, as he was then, in the judgment of the Court of Appeal in HKSAR v Ko Chun Hung, CACC 71/2007, unreported, 9 November 2007:

“By absconding, the applicant also rendered the administration of justice more costly and time-consuming and the judge was entitled to exercise his discretion by reducing the percentage of discount that he would otherwise obtain.”

17.  As Keith J, as he then was, noted in the judgment of the Court of Appeal in HKSAR v Poon Chum Kong, CACC 228/1998, unreported, 12 August 1999, the consequence of a defendant absconding in such circumstances is that:  “His plea of guilty was, in the circumstances, a late plea”.

18.  Of course, one of the prerequisites before a defendant may anticipate legitimately that he will be afforded a full one-third discount is that the plea of guilty is timely.  In the case of the applicant, his trial was delayed by over a year so that the pleas of guilty were anything but timely. 

19.  In the result, in my judgment, the reduced discount of 20 per cent that the judge afforded the applicant from the starting point taken for sentence was entirely appropriate.  Accordingly, his application for leave to appeal against sentence in respect of Charges 1 to 4 is refused.