CACC 265/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 265 OF 2007

(ON APPEAL FROM DCCC NO. 503 OF 2007)

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BETWEEN

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JUDGMENT

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Hon Tang VP:

1.  A bank was defrauded of almost $11,000,000 by two mortgages where the owner’s signatures had been forged. The proceeds were paid into an account controlled by the applicant for which the applicant was paid $50,000. As a result, the applicant was charged with one count of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap. 455. He pleaded guilty to the charge and was sentenced to imprisonment for 42 months, after a one-third discount from a starting point of 63 months. The sentence was ordered to run consecutively to a sentence of 16 months which he was then serving for trafficking in dangerous drugs.

2.  Subsequent to his plea, the applicant has given evidence for the prosecution in two separate proceedings against two accomplices, the proceedings were DCCC 1124 of 2007 and DCCC 84 of 2008, resulting in the conviction of the two accomplices. The applicant was the principal prosecution witness in DCCC 1124 of 2007 and one of the two in DCCC 84 of 2008.

3.  As was pointed out in Z v HKSAR (2007) 10 HKCFAR 184, a usual discount of 50% is given to a defendant who has given assistance to the authorities as well as truthful and material evidence at trial. This matter came for hearing on 1 September 2009 in this court when differently constituted. The hearing was adjourned because at that time the defendant had not yet given evidence in the second set of proceedings. However, by 1 September 2009, the defendant had served just a few days short of 30 months of imprisonment. He was given bail by this court on the basis that were he to be given a discount of 55%, the total sentence which he would have to serve (assuming the defendant was entitled to a one-third remission for good behaviour) would have been around 29½ months.

4.  The matter has returned to us, the applicant having in the meantime given evidence in the second set of proceedings.

5.  Mr David Leung for the respondent, has referred us to some of the authorities, it appears, as I have said, in Z v HKSAR, that a 50% discount is given in cases where a defendant has given assistance to the authorities and has subsequently given truthful evidence in court. It also appears that in the case of R v. Chiu Pak Wing [1995] 2 HKC 819, a 60% discount was given to a supergrass. Also in HKSAR v Tso Kin Hong and Anor, CACC 503 of 2006, unreported, 7 November 2007, the applicants there were given a 50% discount although they were not required to give evidence because the two accomplices had pleaded guilty.

6.  Mr Leung submitted that from the authorities, it appears that the range of discount for a defendant who has testified in two trials for the prosecution should be in the region of 50-60% including a one-third discount for his plea.

7.  I agree that in a case where a defendant has given evidence in two separate trials, a discount in excess of 50% may be given. In the circumstances of this case, I would reduce the applicant’s sentence to the sentence which he had already served when he was given bail on 1 September 2009. In other words, he would be entitled to be discharged as from that date, and that I think translates to a discount of less than 55%

Hon Wright J:

8.  Yes, I agree.

Hon Tang VP:

9.  Leave to appeal against sentence is granted, and treating the application as the hearing of the appeal, the appeal is allowed. The sentence of the applicant is reduced to one which he has served up to 1 September 2009. Hence, the applicant is entitled to be discharged immediately.