HKSAR v. LAM CHI KWAN

CACC 105/2018

[2019] HKCA 538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 105 OF 2018

(ON APPEAL FROM HCCC NO 435/2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  On 28 March 2018 the applicant pleaded guilty to one count of taking a conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap 210 (count 1), one count of trafficking in 64.57 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (count 2), one count of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 (count 3), and one count of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (count 4). All these offences occurred between April and June 2005. He was sentenced by High Court Judge Zervos (as Zervos JA then was) (“the judge”) on the same day to a total term of 8 years’ imprisonment.

2.  The applicant filed a Notice of Application for Leave to Appeal (Form XI) on 17 April 2018 seeking leave to appeal against his sentence.  

3.  At the hearing of the application we allowed it, set aside the sentences of the judge on counts 2 and 3 and sentenced the applicant to a total term of 7 years 10 months’ imprisonment.  We said we would hand down our reasons for doing so at a later date.  These are our reasons.

The Summary of Facts

4.  The Summary of Facts which was admitted by the applicant for the purpose of his sentencing reveals that on 4 May 2005 the applicant was stopped at a police road block where he was found to be driving a motorcycle which had been reported stolen by the owner on 8 April 2005.  When cautioned, the applicant admitted having stolen the motorcycle for his own use (count 1).  The ignition of the motorcycle bore traces of having been prised and the lock of the rear box was prised and damaged.

5.  The applicant was then searched by the police who found in the applicant’s left front trouser pocket a transparent bag containing suspected “Ice” and in his right front trouser pocket two transparent bags containing suspected “Ice”.  A search of the applicant’s black travel bag revealed two more packets of suspected “Ice”.  The applicant admitted the possession of these dangerous drugs which were subsequently confirmed by the Government Chemist to be a total of 65.18 grammes of a crystalline solid containing 64.57 grammes of Ice with an estimated retail value of HK$22,487 (count 2).

6.  The police also found on the applicant a Hong Kong Identity Card, number Z625916(3), which related to another person.  The applicant admitted under caution that he had picked up the Hong Kong Identity Card on the street two days previously and claimed he was about to put it in a post-box but subsequently forgot to do so (count 3).

7.  In a video recorded of interview, the applicant admitted that he had knowingly trafficked in the Ice that had been seized from him.  He also claimed that when he came across the motorcycle the key was inserted in the ignition so he decided to take it away in a moment of fun.  Regarding the Hong Kong Identity Card, he said he had picked it up in Mong Kok a week before his arrest and he planned to put it in a post-box; however, he forgot to do so and had kept the card in his wallet.

8.  On 6 May 2005, the applicant was brought to the Kwun Tong Magistrates’ Court.  His case was adjourned to 3 June 2005 and he was released on bail subject to certain conditions.  He failed to attend the hearing on 3 June 2005 (count 4).  On 17 May 2017, the applicant surrendered himself to Sau Mau Ping Police Station.  Upon caution for the offence of failing to surrender to custody, the applicant said he did not attend the hearing on 3 June 2005 because he did not want to go to prison.  However, having absconded for more than 10 years, he felt he was now ready to take responsibility and therefore decided to surrender himself.

The mitigation

9.  The applicant was 47 years old at the time of his sentence.  He had a partner and a child who was one-year old.  He was born in Hong Kong and attained Form 2 education.  From 1985 to 2004, he acquired a number of criminal convictions relating mainly to drugs or theft.  The most serious conviction was in 1998 for robbery for which he was sentenced to 7 years’ imprisonment.  Mr Boyton, counsel for the applicant at the sentencing hearing, informed the court that the applicant was in fact working for a criminal syndicate at the time of the 2005 offences and when he was on court bail, members of the syndicate suspected he had disclosed information to the police and forced him to work for them in the Mainland.  The applicant was convicted there of illegal possession of a dangerous drug on 23 March 2009 and sentenced to 12 years’ imprisonment from which he was released on 4 August 2016.  He then decided that he would turn over a new leaf and so surrendered himself to the police in Hong Kong.

10.  Mr Boyton accepted that the applicant’s absconding, which had resulted in a late plea of guilty, entitled the judge to reduce the discount that the applicant should receive for his guilty plea.  The reduced discount could be as little as 25% for counts 1 to 3, although, Mr Boyton submitted the court always had a discretion to award a greater discount between 25% and the usual one third.  For count 4, since the applicant pleaded guilty at the earliest opportunity and was only charged for count 4 after his re-arrest, a full one third discount should be applied.  

11.  For count 2, as the time of the offence predated the refined sentencing guideline for the unlawful trafficking in Ice that is set out in HKSAR v Tam Yi Chun[1], Mr Boyton submitted that the guideline in AG v Ching Kwok Hung[2] should be applied. 

12.  For count 1, Mr Boyton submitted that there was no sentencing guideline for the offence of taking a conveyance without authority and suggested a term of imprisonment of 4 to 6 months would suffice.

13.  Regarding count 3, Mr Boyton submitted that the usual sentence was in the range of 12 months’ imprisonment. 

14.  For count 4, Mr Boyton submitted that the range of sentence would be about 4 to 6 months’ imprisonment. 

15.  It was acknowledged by Mr Boyton that the sentencing for counts 1 to 3 should involve an element of consecutiveness. 

The judge’s Reasons for Sentence

16.  The judge first dealt with the issue of the discount to be granted to the applicant as a person who had entered a late guilty plea as a consequence of having absconded and remained at large.  He referred to the Court of Appeal decisions of HKSAR v Wong Cheuk Fei[3], where it was held that the sentencing judge would have been entitled to give a reduced discount, and HKSAR v Lo Kam Fai[4] where the Court of Appeal explained that the usual range of discount afforded to a defendant who has absconded is about 20 to 25%, depending on the circumstances of the particular case. The judge then determined that a discount of 25% was appropriate for counts 1 to 3. 

17.  For count 1, the judge adopted a starting point of 6 months’ imprisonment which when reduced by 25% became 4.5 months’ imprisonment.  For count 2, on the basis of the narcotic content involved, the judge adopted a starting point of 9 years and 8 months’ imprisonment, which he then reduced by 25%, arriving at a sentence of 7 years and 5 months’ imprisonment.  For count 3, the judge adopted a starting point of 12 months’ imprisonment which he then reduced by 25%, arriving at a sentence of 8 months’ imprisonment.  For count 4 the applicantwas entitled to a full one third discount, and by adopting a starting point of 6 months’ imprisonment, the judge arrived at a final sentence of 4 months’ imprisonment.

18.  The judge then took into account the totality principle and concluded that the sentences on counts 1 and 3 should run concurrently with each other whilst the sentences on counts 2 and 4 should run consecutively to each other.  To reach the overall term of imprisonment that reflected the applicant’s culpability, the judge ordered that 3 months of the concurrent sentences on counts 1 and 3 should be served consecutively to the consecutive sentences on counts 2 and 4, thus making an overall term of 8 years’ imprisonment.

The grounds of appeal against sentence

19.  In his Form XI, the applicant complained of three matters, namely:

(i)  it was unfair for the judge to award him a reduced discount of only 25% instead of the full one third discount for pleading guilty;

(ii)  since the prosecution had laid the additional charge of “Failure to surrender to custody without reasonable cause”, the decision of the judge to not grant him a full one third discount when taken in conjunction with the sentence for count 4 being made consecutive to the other sentences amounted to double punishment; and

(iii)  the starting point of 9 years and 8 months’ imprisonment adopted for count 2 was too excessive.

20.  In a written submission dated 3 April 2019 the applicant claimed that the judge had miscalculated the 25% reduction of the trafficking sentence; that is a sentence of 9 years 8 months when reduced by 25% is not 7 years 5 months but 7 years 3 months.  The applicant also submitted that the judge was biased in considering the guilty plea discounts for counts 1-3 because he acted upon the Court of Appeal judgment in Lo Kam Fai where the facts where different from and much worse than the facts of his case.      

The respondent’s submissions

21.  Ms Chan Sze Yan, for the respondent, relied on the judgment of Lo Kam Fai in respect of the 25% discount awarded by the judge and the applicant’s complaint of double punishment.  She submitted that the 25% discount was at the upper level of the usual range of discount that is awarded to an absconding defendant.

22.  In respect of the starting point adopted by the judge for count 2 Ms Chan submitted that the judge had correctly applied the relevant sentencing guideline and his determination of his starting point was based on an accurate arithmetical approach.  She accepted that the judge had erred in his calculation of the 25% discount and that the final sentence of count 2 should be 7 years 3 months’ imprisonment. 

23.  She also drew the court’s attention to an arithmetic miscalculation in respect of count 3.  A 25% discount of a 12 months’ starting point is not 8 months but 9 months.

Discussion

24.  There is no merit in the complaint that the judge erred in awarding the applicant a discount of only 25% for his plea of guilty.  As a matter of law the judge was entitled to, and normally should, reduce the discount to be awarded for a plea of guilty when the plea is delayed because the defendant has absconded.  It is settled law that the reduced discount should be between 20-25%.  The position was clearly set out by Lunn VP in his judgment in Lo Kam Fai where he said[5]:

“31. It has been long established in this jurisdiction that the full discount of one third from that taken as a starting point for sentence for a plea of guilty is afforded only in circumstances where that plea is timely. The appropriate reduced discount to be afforded to a defendant where a plea of guilty is not timely will reflect the individual circumstances of the particular case. A range of factors may be relevant: the length of time that justice has been delayed; whether or not the defendant surrendered to the authorities ultimately or whether it was necessary for him to be rearrested; the inconvenience and wasted expense and costs caused by the aborted scheduled hearing, to witnesses, counsel and the court. That is particularly the case, if witnesses have travelled to Hong Kong from overseas or remained in Hong Kong, where otherwise they would not have done so, in order to give evidence. There may be many other relevant factors.

32. Mr Beel was correct to concede that the usual range of discount afforded to a defendant who has absconded is about 20% to 25%. Of course, there are circumstances peculiar to a particular case which will justify discounts outside that range. Within the usual range, the Judge has a discretion in determining the discount appropriate to the circumstances of any particular case.”

25.  As the applicant was awarded a 25% discount, the most beneficial discount usually available to an absconding defendant, there is no possible basis for saying that the judge erred in the exercise of his sentencing discretion.

26.  For count 2 the judge’s starting point was arrived at by correctly applying the relevant authority.  There is no error by the judge in the calculation of his starting point.

27.  However, we accept there are mathematical errors in his calculations of the final sentences for counts 2 and 3.  The final sentence for count 2 should be 7 years 3 months and for count 3, 9 months.

28.  There is no merit in the complaint of double punishment.  As Ms Chan pointed out, the judge was doing no more than applying binding authority.  In Lo Kam Fai the Court of Appeal approved the earlier decision of the Court of Appeal in HKSAR v Poon Chum Kong[6].  In rejecting the argument that a defendant was being punished twice for his absconding Keith JA, in giving the judgment of the Court of Appeal said:

“… The reason why the discount is reduced in these circumstances is because the plea of guilty is not tendered at the earliest opportunity. Indeed, the effect of the Appellant absconding was that there had to be a second trial. He was not therefore being punished for absconding. He was being denied the discount to which he would otherwise have been entitled because of the consequences of his absconding, namely that his plea of guilty was in the circumstances a late plea and that a second trial was necessary.”

29.  The rationale for not awarding the full one third discount can be readily distinguished from the culpability of the failing to surrender to custody offence and the reason why the sentence for such an offence should normally be served consecutively to the sentence imposed for the offence from which the defendant absconded.  This was explained by Lunn VP in Lo Kam Fai when he said[7]:  

“… I am satisfied that the core element of the offence of failing to surrender to custody without reasonable excuse is a contemptuous breach of a promise to a court, which thereby brings the administration of justice into disrepute. It is that element that distinguishes it from the substantive offences with which defendants are charged in any particular case. It is that consideration that has led the courts in this jurisdiction and in England and Wales to determine that if a custodial sentence is to be imposed, normally it is to be made consecutive to the sentence imposed for the substantive offence.”

Disposition

30.  For these reasons, we allowed the application for leave to appeal against sentence.  We set aside the sentences of the judge in respect of counts 2 and 3 only and in substitution for them imposed on the applicant sentences of 7 years 3 months and 9 months respectively.  We did not interfere with the orders for consecutiveness made by the judge with the result that the total term of imprisonment that the applicant must now serve is 7 years 10 months’ imprisonment.