HKSAR v. LUI MAN KIT

HCMA498/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 498 OF 2006

(ON APPEAL FROM KCCC 2025 OF 2006)

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Dates of Hearing : 20 July, 6 and 11 October 2006

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REASONS  FOR  JUDGMENT

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1. On 11 October 2006 the appellant’s appeal against sentence was dismissed, it being indicated the reasons for the dismissal would be articulated later.  These are those reasons. 

2. The appellant, who appears in person, appeals against the sentences imposed on him by Mr Kevin Browne in Kowloon City Magistrates’ Court on 11 May 2006, following his conviction on 27 April 2006, after his pleas of guilty to four charges of theft from parked motor vehicles, contrary to section 9 of the Theft Ordinance, Cap. 210.  The magistrate imposed sentences of six months’ imprisonment on each of the charges and ordered that two months’ imprisonment imposed in respect of each successive charge be served consecutively with the sentence imposed on the earlier offence.  Accordingly, the total sentence of imprisonment imposed on the appellant was 12 months.  However, 10 months’ imprisonment in respect of those sentences were ordered to be served consecutively to a term of six months’ imprisonment imposed on the appellant on 6 April 2006 for an offence he committed on 8 February 2006.

The facts

3. Three of the charges related to thefts from the same vehicle and the fourth charge theft from another vehicle.  The thefts from the first vehicle occurred in the second half of March 2006 whilst the vehicle was parked in a car park in Sham Shui Po.  The items stolen on the first occasion included not only a digital camera and the vehicle audio equipment but he also the two front seats and the gear lever.  On the next two occasions the vehicle was stripped of vital components.  The theft the subject of the fourth charge was committed first in time, in December 2005.  Once again, items were stolen from the vehicle whilst it was parked in a car park.  This time among the items removed were the vehicle’s rear wheels!

4. The owner of the vehicle the subject of the first three charges reported the loss of property to the police after the first theft.  Notwithstanding that report to the police, the second theft occurred whilst the vehicle remained in the same place.  However, fortunately by the time of the third offence the police had mounted surveillance on the vehicle and caught the defendant and his co-accused in the act of stealing from the vehicle.  The appellant and his co-accused had come to the car park to commit the third offence in two motor cars.  The fourth offence came to light when the owner of that vehicle recognized on the appellant’s car vehicle parts taken in December 2005 from his car.  Under caution the appellant admitted the thefts the subject of the first three charges.

Reasons for sentence

5. Following the appellant’s conviction the magistrate called for a background report, which he stated he considered before imposing sentence.  The appellant was described as 29 years of age, married with a daughter of two years of age.  The appellant had been sentenced to eight years’ imprisonment in May 1994 for the offence of unlawful trafficking in a dangerous drug, 3½ years imprisonment in October 1994 for the offence of robbery and to 19 months’ imprisonment in July 2001 for offences of dishonesty.

6. The magistrate stated that, in imposing sentence on the appellant, he took into account the principle of totality and the fact that the offences the subject of the first three charges, namely, the ones committed in March 2006, were committed whilst the appellant was on bail for another offence of stealing from a motor vehicle, namely, the offence committed on 8 February 2006, of which he was convicted on 6 April 2006 and sentenced to six months’ imprisonment.

Grounds of appeal against conviction

7. In his home-made grounds of appeal against conviction the appellant complains that the sentences imposed on him were too severe.

In the course of the hearing that the appellant made the following additional points :

(i)      that he had pleaded guilty at the earliest opportunity and that had not been taken into account;

(ii)      that the magistrate had not stipulated any starting point for the individual charges;

(iii)     that the magistrate had not taken the principle of totality of sentence into account; and

(iv)     finally, he complained that his co-accused in all five charges had been sentenced to a lesser term of imprisonment.

The respondent’s submissions

8. Mr Leung, for the respondent, submits that the total sentence of 12 months’ imprisonment imposed on the appellant in respect of the four charges was a lenient sentence given that the offence and were committed over a period of our four months together with a co-accused.  If they were wrong, it was because they were too lenient sentences.

9. The hearing of the appeal was adjourned twice to enable the court to obtain the court file and a transcript of the proceedings concerning the appellant’s co-defendant, Fung Wai Kwong, before Mr Kevin Browne and Mr John Glass, to whom the case was transferred, so that the appellant submissions in respect of the sentence imposed on his co-accused could be considered.  It is apparent from the transcript of the proceedings before Mr Kevin Browne that the case in which Fung Wai Kwong was jointly charged with appellant in respect of four charges of theft was transferred to Tsuen Wan Magistrates’ Court because Fung Wai Kwong was due to be sentenced that day in that other court for another offence.  The other offence was a charge of possession of an offensive weapon in a public place, contrary to section 33 of the Public Order Ordinance.  The resumed hearing on 6 October 2006 was itself adjourned to enable the court to obtain the Magistracy case file.

10. On 27 April 2006 Fung Wai Kwong was sentenced by Mr John Glass in the following way :

(i) six months’ imprisonment in respect of the offence of possession of an offensive weapon in a public place; and

(ii) six months’ imprisonment in respect of each of the four charges of theft from motor vehicles, two months’ imprisonment respectively of each of the terms of imprisonment imposed on the appellant in respect of charges 2, 3 and 4 to be served consecutively in respect of that imposed in respect of charge 1, which the magistrate stated made a total of 12 months’ imprisonment.

Mr Glass stated that he took a starting point of nine months’ imprisonment in respect of each of the five separate charges.  He ordered that three months’ of the sentence imposed in respect of the offence of possession of an offensive weapon in a public place be served consecutively to the total sentence of imprisonment imposed in respect of the four charges of theft, with the result that the overall sentence imposed was 15 months’ imprisonment.

11. However, thereafter the magistrate went on to say :

“I now consider all other factors in mitigation, and I have decided that there should be an overall discount of 60%.  That 60% includes the one-third discount that I have already allowed for the guilty plea.”

12. After a lengthy interchange with the court prosecutor Mr Glass stated that the total sentence of imprisonment imposed for the five charges, namely possession of an offensive weapon in a public place and four charges of theft, was 10 months’ imprisonment.  He ordered six months’ of that term of imprisonment to be served consecutively to the total sentence of imprisonment of seven months’ imprisonment imposed on Fung Wai Kwong on 6 April 2006, which sentence was made up of six months’ imprisonment imposed for the offence of their from a vehicle committed on 8 February 2006 together with the appellant and one months’ imprisonment imposed for a breach thereby of a suspended sentence of one months’ imprisonment.  In the result, the magistrate stated that the total sentence of imprisonment imposed on Fung Wai Kwong was 13 months’ imprisonment.

The further submissions of the respondent

13. Mr Leung submits that the approach taken by Mr Glass in sentencing Fung Wai Kwong was flawed in several respects;

the magistrate was in error in stating that “ the other theft from a vehicle which is the most recent case at Fanling — for which he was given six months — I believe was committed after these offences”; and

there was no basis for the magistrate to give Fung Wai Kwong an overall discount of sentence of 60%.

14. Of the significance of the factual error Mr Leung submits that that is one reason why the magistrate ordered only six months of the sentences of imprisonment imposed in respect of the four charges of theft and the one charge of possession of an offensive weapon in a public place to be served consecutively to the sentence imposed on 6 April 2006 for the separate charge of theft from a vehicle.  Of the overall discount of 60% that the magistrate stated that he afforded Fung Wai Kwong, Mr Leung submits that there was no basis whatsoever for such a large discount and he draws the court’s attention to paragraph 16 of the judgment of the Court of Appeal delivered by Stuart-Moore VP, in the Secretary for Justice v. Chau Wai Fun (unreported, CAAR 1/2006) in which he cited with approval a passage in the judgment of the Court of Appeal in HKSAR v. Lee Kwok Chuen (unreported, CACC 445/2000) that a one-third discount “is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time.”

15. In consequence, Mr Leung, relying on the well-known principle that judicial error in sentencing one accused does not in inure to the benefit of a co-accused, submits that the sentence imposed on Fung Wai Kwong is not relevant to the issue of whether or not the sentence imposed on this appellant was appropriate.  He relies on the judgments of the Court of Appeal in R. v. Lung Wei Cheong (unreported, CACC 293/1994), Attorney General v. Ngan Suen Kee [1987] HKLR 451, at 453 G-H and HKSAR v. Chow Tak Fun (unreported, CACC 428/2004).

A consideration of the submissions

16. The appellant is correct in asserting that whilst the magistrate did state that the appellant had pleaded guilty to the four charges he did not state specifically that he took that into account in mitigation of sentence.  However, I’ve no doubt whatsoever that is what this experienced magistrate had done.  He had been asked to do so in mitigation.  Similarly, it is correct that the magistrate did not identify the starting point for sentence.  Clearly, with respect, he ought to have identified a starting point for sentence.  However, I have no doubt whatsoever that the magistrate had arrived at the sentence imposed in respect of each charge having given the appellant the well-known and conventional discount for a timely plea of guilty of one-third from the sentence that would have been imposed after trial.

17. Of the relevance of the sentences imposed on the appellant’s co-accused, Fung Wai Kwong, it is necessary first of all consider the process by which Mr Glass arrived at the sentence imposed on the pokies, in particular the 60% overall discount in sentence he stated that he afforded him.  In the recent judgment of the Court of Appeal in HKSAR v. Wen Zelang (unreported, CACC 220/2006) the ambit of the factors encompassed within the one-third discount for a timely plea of guilty was addressed yet again :

“18.      This court has said on numerous occasions that the discount of one-third for those who plead guilty at an appropriate time is usually the full extent of the discount to be given.  In HKSAR v. Leung Shuk-man [2002] 3 HKC 424, it was stated (at pages 426 to 427) :

‘… the appellant was given a one-third discount which is normally to be regarded as the high watermark of the discount accorded to a defendant showing remorse by pleading guilty, whether or not a defendant is able to claim previous ‘good character’ in the sense of ‘clear record’.  Positive good character may well entitle a defendant to a slightly enhanced discount such as in the example of an offender who has worked without payment for a charitable cause within the community.  This appellant was entitled to no more than a one-third discount for her plea.’

Similar sentiments were expressed in HKSAR v. Lee Kwok-chuen CACC 445/2000.”

Later, at paragraph 23 it was noted :

“23. Some of the factors which may provide mitigation are set out in Sentencing in Hong Kong [4^th ed. at page 292].  Clearly, a judge or a magistrate does have, in appropriate circumstances, some discretion to increase the discount on a plea of guilty but there must be a solid foundation to justify this.”

18. In my judgment, having reviewed the magistracy case file and a transcript of the proceedings before the magistrate, with respect, there was no proper basis for Mr Glass to afford Fung Wai Kwong an overall 60% discount of sentence.  Furthermore, the magistrate was in error to state that the single charge of theft for which Fung Wai Kwong was sentenced on 6 April 2006 was in respect of an offence committed after the offences that formed the four charges of theft.  Three of those charges were based on events that occurred after 8 February 2006.  The sentence of a total of 13 months’ imprisonment imposed on Fung Wai Kwong was arrived at in error.  Whilst Fung Wai Kwong may have benefited from the error of the magistrate it does not afford any basis for this appellant to complain legitimately of a disparity in the sentence imposed upon him.

19. For a man of his age the appellant has a bad criminal record.  The offences of which he was convicted evidence sustained criminality.  They illustrate contempt for the rights to property of others.  Furthermore, the offences committed in March 2006 were committed whilst the appellant was on bail for an offence of the probably committed in February 2006 for which he was not convicted until April 2006.

20. In my judgment, given that the first three of the offences committed by the appellant were committed whilst he was on bail for the offence committed in February 2006, the magistrate was correct to make 10 months of the total sentences imposed on the four charges for which he imposed sentence consecutive to the sentence of imprisonment that the appellant was serving at the time of sentence.  The effect of that order was to exclude from the order that the sentences be consecutive to the existing term of imprisonment any part of the sentence imposed in respect of the fourth charge, namely, the December 2005 offence.  Clearly, that was correct because the offence had been committed prior to the February offence.

Conclusion

21. In my judgment the sentences imposed by the magistrate were entirely appropriate and thoroughly deserved.  In the result, on 11 October 2006, the appellant’s appeal against sentence was dismissed.