HKSAR v. NGO VAN NAM

CACC 418/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 418 OF 2014

(ON APPEAL FROM DCCC 909 OF 2012)

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REASONS FOR JUDGMENT
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Introduction

1.  On 9 November 2012 the applicant appeared before Judge Geiser (“the judge”) in the District Court and pleaded guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210, and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.

2.  On that day he was sentenced by the judge to a total sentence of 5 years and 3 months’ imprisonment.

3.  By a Notice of Application for leave to appeal out of time filed on 2 December 2014, the applicant applied for an extension of time in which to apply for leave to appeal against his sentence.  On 30 June 2015 I adjourned the hearing of the application so that the respondent could obtain further information on the circumstances in which the applicant’s admission came to be made and to conduct further legal researches on the approach that courts in Hong Konghave taken to the situation of an offender who reveals his complicity in an offence known to the police but his complicity in that offence is not known and but for his confession would not have become known to the police. 

4.  At the adjourned hearing of the application I granted him the extension of time that he sought and granted him leave to appeal.  I said I would give my reasons for so doing at a later date.  These are my reasons.

The background to the offence

5.  At his trial the applicant admitted a Summary of Facts which revealed that at about 10 pm on 13 March 2012, he and two other males boarded a taxi outside Tung Chung MTR station.  One of the three men sat next to the driver on the front seat whilst the other two, of which the applicant was one, sat on the rear seat.  The taxi was asked to go to Fu Tei Road, Tuen Mun, New Territories. 

6.  Upon reaching Tuen Mun Fresh Water Primary Service Reservoir one of the passengers in the rear seat, not the applicant, gripped the driver’s neck from behind and pointed at his neck with an 8 inch long knife and declared “Robbery”.  The other passenger on the back seat told the driver not to move and the passenger on the front seat ordered the driver to switch off all the taxi’s lights and then used his hand to break the taxi’s radio and demanded the driver to take out all his money.

7.  The driver handed HK$1,200 in banknotes to the front seat passenger who also took away approximately HK$200 in coins from the front seat.  The driver also handed over his watch (valued at HK$500), a mobile phone (valued at HK$1,500) and a silver ring (valued HK$100).  The three males then left.  The taxi driver suffered no injuries and reported the case to police.

8.  On 25 July 2012 the applicant was arrested outside Exit C, Kwai Fong MTR Station, Kwai Chung.  Upon enquiry from the police he admitted that he had sneaked into Hong Kong from the Mainland on that day.  He also revealed that he had committed a robbery in March 2012 at Tuen Mun.

9.  In a subsequent caution interview the applicant admitted that he had come to Hong Kong for two days before committing the robbery.  He met two Vietnamese friends here and the three of them decided to rob a taxi.  He then explained how they had taken a taxi from Tung Chung to Tuen Mun and how he had sat on the left side back passenger seat.  He said that later he surrendered himself to the police station as an illegal immigrant while his two friends had sneaked back to Vietnam. 

10.  He also said in his caution interview that on 25 July 2012 he sneaked into China and then into Hong Kong by hiding underneath a truck.  He said that he came to Hong Kong to cure his addiction to dangerous drugs. 

The judge’s reasons for sentence

11.  After referring to the background facts of this case the judge noted that the applicant was 26 years of age and had no previous convictions in Hong Kong.  He also said he would take into account the two matters that the applicant’s counsel has addressed on his behalf.  The first was his plea of guilty and the second was that the police’s knowledge of the applicant’s involvement in the robbery came entirely from the information which the applicant himself had freely volunteered to the police.  He also accepted that it was not the applicant who displayed the knife to the victim but he noted that as this was a joint enterprise all three parties to it were equally culpable. 

12.  The judge then referred to two decisions of the Court of Appeal which state that the appropriate starting point for taxi robberies in which a weapon is used is a sentence of 7 years’ imprisonment.  These cases are R v Tran Van Anh [1993] 2 HKCLR 122 and Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139.  In accordance with these authorities, by which he was bound, the judge adopted a starting point on the first charge of 7 years’ imprisonment.  He discounted that starting point by one third to take into account the applicant’s plea of guilty and in that way arrived at a sentence of 56 months’ imprisonment.  He further discounted the 56 months by a period of 3 months to take into account the fact that the applicant had volunteered the information relating to his involvement in this robbery to the police.  The final sentence on Charge 1 then became 53 months’ imprisonment.

13.  In respect of Charge 2 the judge noted that the normal sentence is one of 15 months’ imprisonment and he could see no reason to depart from that sentence.  He then applied the totality principle and formed the view that only 10 months of the 15 months’ sentence should be ordered to run consecutively to the sentence of Charge 1.  In so ordering he reached a total sentence of 5 years and 3 months’ imprisonment.

The application for an extension of time and the grounds of appeal

14.  In his Form XI the applicant attached an affirmation in which he stated:

“I understand that I am making an application out of time, the reason of which being that I did not understand yet, when I was serving my sentence, the procedures and time limit for filing an appeal.”

15.  At the hearing on 30 June 2015, in further explanation for his delay, he said that after being sentenced he was alone in Shek Pik prison as he was the only Vietnamese prisoner.  He claimed he did not know the time limit for lodging an appeal.  Later when he was moved to another cell he came into contact with a countryman and after discussion with him he formed the view that his sentence was too heavy. 

16.  I also invited the applicant to inform me of his complaints in relation to his sentences and he said that when he returned to Vietnam after committing the robbery offence he told his mother what he had done and she said to him that what he had done was wrong and that he must confess to his wrongdoing.  He also said his father passed away recently.  Whether the death of his father had anything to do with his decision to return to Hong Kong is unclear but he said his only motivation in returning to Hong Kong was to surrender himself to the police and confess to the robbery offence.  He hoped that in return for so doing he would receive a lenient sentence.  Finally, he promised that when he returns to Vietnam he will turn over a new leaf and not come back to Hong Kong again. 

Discussion

17.  The applicant is some 2 years out of time for filing the application for leave to appeal and nothing he has said in his affirmation or before me today comes anywhere close to adequately explaining the substantial delay in filing a Notice of Application for Leave to Appeal. 

18.  It is well settled that when an applicant seeks the indulgence of the Court of Appeal in seeking an extension of time in which to appeal the court will have regard to the length of the delay and the reasons advanced for that delay.  The longer the delay the more onerous is the duty on the applicant to advance a cogent explanation for the delay.[1]  Substantial grounds must be shown for the delay and this the applicant has not done.

19.  However, the court will also look at the grounds of appeal and consider their merits in order to check that in refusing the extension of time it would not be shutting out a substantial and plainly arguable ground of appeal.  I, therefore, turned to consider the applicant’s complaints to see if there was contained within them a plainly arguable ground of appeal.

20.  The sentencing guideline of 7 years’ imprisonment for taxi robberies where a weapon is employed without causing injury was first laid down by the Court of Appeal in the Tran Van Anh case.  It has since been applied and affirmed on numerous occasions. (See the discussion of the case law by Barnes J in HKSAR v Hussain Shakil CACC 387/2011, unreported, 29 June 2012.)  I see no reasonable prospect of success for an argument that the court should alter that guideline or that it should not have been applied to this applicant.  Likewise in respect of the sentence for the unlawful remaining offence.

21.  However, where the applicant has a complaint that is reasonably arguable is in respect of whether, in the unusual circumstances of his case, he should have been given a greater discount for his confession to the robbery offence and whether any part of the unlawful remaining offence sentence should have been ordered to be served consecutively.

22.  On this legal issue I have been greatly assisted by counsel for the respondent, Ms Christal Chan, who has conducted considerable research and provided the results of that research to the court.  I shall briefly summarise what I understand her research to have revealed.

23.  The law in Hong Kong on how to treat an offender who has confessed to an unknown crime or in respect of a crime known to the authorities has confessed his complicity in it and that complicity would not, but for his confession, have otherwise become known to the authorities, does not appear to have developed in a consistent way.  It is clear that merely confessing to a crime by a suspect is not sufficient to entitle that person to a discount greater than the usual one third.  (See Secretary for Justice v Lee Chun Ho Jeef [2009] 6 HKC 471 at 477, paragraph 37.)  However, where a person confesses to a crime whose commission is unknown to the authorities or confesses his complicity in a known crime where his complicity is neither known nor suspected then it appears that a further discount is warranted.  The Court of Appeal has said that there are strong public interest reasons for the giving of this additional discount. (See HKSAR v Choi Ka Kin Seraphim CACC 377/2012, unreported, 26 April 2013.)  Furthermore, the Court of Appeal has explained that the one third discount which is given for a plea of guilty and which includes the fact that the defendant has confessed his crime to the authorities, has little to do with whether the defendant has shown remorse.  In contrast, conduct of the kind which this applicant prays in aid is conduct which, it has been said, evidences great remorse.[2] It may well be that recognizing this remorse and rewarding it is the rationale for the granting of an additional discount.

24.  However, what that additional discount should be is less clear.  In the Choi Ka Kin Seraphim case the offender was given a 40% discount, but that seems to be the only case in Hong Kong where the additional discount has been expressed in percentage terms.  In other cases the courts have just awarded a discount of a particular number of months without reference to what the final discount will be as a percentage of the starting point sentence.  See, for example, HKSAR v Hui Chi Tong CACC 414/2007, unreported, 12 June 2008 at paragraph 25 where the court simply gave a further discount of 2 months.  A similar response was taken by the court in HKSAR v Tsang Kai On [2011] 2 HKLRD 340. 

25.  Overseas, a more generous approach appears to be taken.  In England it has been said that a discount of up to 50% can be given. (See R v Claydon (1994) 15 Cr App R(S) 526[3] and R v Hoult (1990) 12 Cr App R(S) 180.)  In Australia the additional reduction in sentence does not appear to be quantified in percentage discount terms and has simply been referred to as justifying “a significant added element of leniency.”  (See R v Ellis (1986) 6 NSWLR 603 at 604C-F and AB v The Queen (1999) 198 CLR 111.)

26.  Despite these cases Ms Chan has uncovered cases where notwithstanding that the defendant’s complicity in criminal conduct only came to the knowledge of the authorities through the defendant taking the initiative to reveal it, no more than the one third discount has been given. One such case is HKSAR v Yuen Kwok Kee CACC 336/2005, unreported, 21 December 2005 where the Court of Appeal said at paragraph 21 that “it is a matter for the trial judge to decide if any further discount should be given, and the extent of such discount.”  Amongst other cases to which Ms Chan referred the court were HKSAR v Ma Ming [2013] 1 HKLRD 813, HKSAR v Chu Kwok Chu [2013] 6 HKC 357.  However, it may be that upon closer analysis these cases are not in conflict with the Choi Ka Kin Seraphim case.  Indeed at paragraphs 21-24 Yeung VP in the Chu Kwok Chu case recognised that a further discount could be given for the special remorse demonstrated by circumstances of the kind on which the present applicant relies, but at paragraph 25 he did say:

“ The fact that a judge may, in the exercise of his discretion, give a defendant, who voluntarily confesses to the offence and without whose confession the prosecution would have no evidence against him or who voluntarily pleads guilty notwithstanding a lack of sufficient evidence, a further discount of sentence other than the usual one-third does not mean that where a judge refuses to do so, the defendant will have a legitimate complaint and can successfully appeal against such a refusal.”

27.  Of course, here the judge did have regard to the fact that the applicant volunteered his complicity in the robbery offence and did award him a specific discount for this conduct and the remorse which it evidenced.  Deciding that the applicant’s conduct merits a further discount and assessing what that further discount should be are very much questions for the trial judge to determine and it may be that any applicant arguing against the trial judge’s exercise of discretion on these matters will face a considerable hurdle in the appellate courts.  But these are all issues for the Court of Appeal to address.

28.  Ultimately, it seems to me, the generosity of the discount will be determined by the circumstances of the particular case.  Here the applicant is pitching his case very high.  He is claiming that he came back to Hong Kong for a specific purpose, and only for this purpose, of confessing to the robbery offence.  If that claim was accepted then the applicant would have a strong arguable case for saying that he should have received a larger discount and that no part of the unlawful remaining offence sentence should have been ordered to be served consecutively to the robbery offence.

29.  In the unusual circumstances of this case I was of the view that the applicant has a plainly arguable ground of appeal and so I granted him an extension of time in which to apply for leave to appeal and I granted him leave to appeal.  

30.  But, and I emphasised this to the applicant, allowing his case to go forward to the Court of Appeal does not mean that he will necessarily succeed on his appeal.  Nor does it mean that the Court of Appeal will accept any claim he might make as to his purpose in returning to Hong Kong or the circumstances in which his confession came to be made.  Ultimately it will be for the Court of Appeal to determine what it accepts was the purpose of his return to Hong Kong and what it accepts were the circumstances of his confession. 

31.  The claim that the applicant has made before me does not appear to have been made at trial and so I directed that the transcript of the mitigation be obtained and included in the appeal bundle, in the hope that the way in which the applicant’s case was put at trial can be more clearly known.

32.  If the applicant wishes to place new material before the Court of Appeal, such as documentation relating to his debriefing by the police, then he will need to satisfy the requirements of section 83V of the Criminal Procedure Ordinance.  To enable his counsel to properly consider the applicant’s position in this regard I encourage the respondent to make full disclosure of any relevant materials, still in existence, relating to his debriefing.  I am informed by counsel for the respondent that the original debriefing form is no longer available.

Conclusion

33.  For the reasons set out herein I granted the applicant an extension of time in which to apply for leave to appeal his sentences and granted him leave to do so.  In order that the applicant’s case may be properly argued before the Court of Appeal I granted him legal aid.