HKSAR v. LAI KIM MAN

CACC 300/2018

[2018] HKCA 877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 300 OF 2018

(ON APPEAL FROM DCCC NO 193 OF 2018)

_______________

_______________

___________________

D E C I S I O N

___________________

1.  The applicant applies for bail pending appeal. He was one of four defendants who all pleaded guilty before District Court Judge Tam to a joint charge of burglary of a school. The four men admitted that they broke into the school to steal computers. The applicant was arrested for the offence on 7 December 2017. He pleaded guilty to the offence on 18 September 2018 and was sentenced to 22 months’ imprisonment.

2.  The judge in sentencing the applicant adopted the usual starting point for burglary of non-domestic premises of 2 years and 6 months’ imprisonment which he enhanced by 3 months for the aggravating factor that the burglary had been committed by a group of four offenders to 2 years and 9 months’ imprisonment.  He reduced the sentence by one third for the applicant’s guilty plea to 22 months’ imprisonment.

3.  The applicant has applied for leave to appeal against his sentence.  A date has yet to be fixed for the hearing of his application.

4.  There was an issue before the judge, and this is the basis of his appeal, that the applicant had indicated that he would give evidence against the 4^th defendant who had not yet indicated that he would plead guilty to the offence.  Counsel on behalf of the applicant sought a further reduction to his sentence for the claimed assistance he had rendered to the authorities.  However, the judge rejected this submission, noting that no statement had been provided to the authorities by the applicant and the 4^th defendant’s plea of guilty was not influenced by the suggestion that the applicant would give evidence against him.

5.  There are two factors that need to be taken into account when considering an application for bail pending appeal.  The first and obvious factor is whether the basis of the appeal would have a good chance of success and would warrant the applicant’s release from custody.  The second factor is whether there is a risk that a substantial part of the sentence will have been served by the time the appeal is heard.  The first factor will have a bearing on this factor.

6.  I am not satisfied that bail should be granted to the applicant in light of the foregoing, and the application is refused.