SECRETARY FOR JUSTICE v. LEE YUN-KIN, THOMAS

CAAR 5/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 5OF 2016

(ON APPEAL FROM HCCC NO. 455 OF 2015)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1. With the leave of Cheung CJHC, granted on 9 November 2016 pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, the Secretary for Justice appealed against the sentence of 240 hours of Community Service imposed on the respondent on 18 October 2016 by Deputy High Court Judge Lugar-Mawson, upon his conviction on his plea of guilty on 21 September 2016 to a count of indecent assault of Ms X on 19 March 2014, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. An alternative count of rape of Ms X arising from the same facts was ordered to lie on the court file. At the conclusion of the hearing we allowed the appeal, quashed the sentence imposed by the judge and imposed a sentence of 2 years’ imprisonment on the respondent. We said that we would give our reasons in due course. That, we do now.

The facts

2. The respondent was the proprietor and operator of the Four Kings Darts Club, Room 1903, Laurels Industrial Centre, 32 Tai Yau Street, San Po Kong.  From mid-February 2014, Ms X, a 22-years old female, patronized the Darts Club together with her boyfriend, Mr Chau.  On occasions, having informed her boyfriend in advance, she went there by herself. They both became acquainted with the respondent and were given his mobile phone number.

3. On 18 March 2014, Ms X agreed to the respondent’s suggestion, made in a ‘Whatsapp’ conversation, that she visit the Darts Club the following morning to discuss her work-related problems.  Ms X informed her boyfriend about the proposed meeting.

4. At around 10:45 a.m. on 19 March 2014, Ms X arrived at the Darts Club.  She was wearing an overcoat dress, beneath which she was clad in a black top, a pair of shorts and undergarments.  There were no other customers present.  First, the respondent and Ms X discussed the latter’s work-related problems.  Then, at around noon they began to play darts. In a conversation with Mr Chau at 12:19 p.m., Ms X informed him that she would leave the Darts Club around 1:00 to 2:00 p.m.  Having agreed to the respondent’s suggestion that she drink some wine, Ms X consumed glasses of an alcoholic drink prepared for her by the respondent.

5. Of the ensuing events, the respondent accepted the following description in the Summary of Facts:[1]

“ X recalled after consuming around 2 glasses of alcoholic drink, she began to feel very dizzy.  She lay on the sofa sideways facing the backrest and fell asleep.  X recalled that at some stage, someone was holding her from behind and moving his hands across her body, from her waist up to her breasts.  She also vaguely recalled hearing someone whispering, “Hey, (you) better wake up or I cannot stand anymore.”  X recalled striking back with her elbow and stating in foul language asking that person not touch her.  X completely lost her consciousness after that.  She could only recall that at a later stage, she was supported by someone to the toilet to vomit, and that her boyfriend CHAU was making a request of calling the police.”

6. At about 3:11 p.m., having made several unsuccessful attempts to call Ms X’s mobile telephone, Mr Chau succeeded in contacting Ms X.  However, she was incoherent and hung up.  When Mr Chau telephoned Ms X again, the respondent answered the call and informed him that, having drunktwo glasses of eggnog, Ms X had laid down.  Mr Chau went to the Darts Club, arriving at about 3:25 p.m.  There, he found Ms X, apparently unconscious, lying on a sofa covered with a blanket.  Mr Chau noticed that the zipper on Ms X’s pair of shorts was undone.  For his part, he called the police.  An ambulanceman who came to the premises observed that Ms X was “not in a conscious state of mind and could not express herself clearly.”

7. At 4:35 p.m. Ms X arrived by ambulance at Queen Elizabeth Hospital.  Although a doctor found her vital signs to be normal, she was observed to be “mentally confused”.  A preliminary examination of her urine sample revealed the presence of benzodiazepine, a hypnotic that causes drowsiness and unconsciousness.  Subsequent analyses of blood and urine samples taken from Ms X confirmed the presence of alprazolam and clozapine.  Ms X regained consciousness at about 4:00 p.m. on 20 March 2014.

8. Dr Tse Man Li, an expert in toxicology, estimated that the level of alprazolam present in Ms X’s blood at around 1:30 p.m. on 19 March 2014 was in the range of 0.03 to 0.09 micrograms per millilitre, which would have had a “mild to moderate sedative effect that typically manifests as sleepiness and lethargy.” [2] Alprazolam is classified as a dangerous drug.  In his opinion, the level of clozapine present in Ms X’s blood at that time was in the range of 0.14 to 1.92 micrograms per millilitre.  At the mean level of 0.83 milligrams per millilitre, the effect would be “heavy sedation, confusion and even coma.” [3] Clozapine is a prescription-only drug for treatment of psychotic disorders.  Clozapine was detected in one of five glasses seized from the Darts Club by the police on 21 March 2014.

9. Seminal stains with human sperm bearing the respondent’s DNA were found on Ms X’s underpants.  Semen bearing the respondent’s DNA was found on low vaginal swabs of Ms X.

10. The Summary of Facts concluded by stating simply “D now admits having indecently assaulted X on 19 March 2014 inside the Darts Club”.

Mitigation

11. Of the events of the early afternoon of 19 March 2014, Mr Nicholas Adams submitted in mitigation that, after the respondent had mixed a jar of eggnog which he and Ms X began to consume as they played darts:[4]

“ …they were talking to each other while they were throwing the darts. At the beginning she talked about her business and then she talked about her relationships, in particular with this boyfriend in this case. She was unhappy with the boyfriend because she believed he had been having an affair. She was also unhappy about someone affecting her business.

They stopped throwing darts and sat on the sofa talking. The defendant says that she was talking again about her boyfriend’s affair and it gave her insomnia, and that she needed to take hypnotics to sleep. The defendant says that she told him the hypnotics did not work. During the conversation they started to hug and kiss each other…

Naturally then they lay on the sofa together. He took off his trousers and underpants, it would seem, and he took off her shorts…

He says that she did not at that stage object. He did not take off her knickers, her underpants. He continued to hug and kiss and he used his erect penis to rub her panties. He says her attitude at that stage was voluntary, with no objection shown.

He then planned to move away the part of her panties that covered her private part and penetrate her, enter her private part, but she pushed him -- pushed his shoulder suddenly and asked him to stop. She said she didn’t want it, and so he did not penetrate.

It must have been at that stage that his semen got on her underpants, and that is the indecent assault as admitted to, that he tried to persuade her a bit further than he should have.  He did not penetrate her, and indeed, as we look at the facts, we have -- she actually says something about how she pushed him away and that he desisted.  He got up and went to the toilet - put his trousers on and went to the toilet.”

12. Finally, Mr Adams said that on his return from the toilet, the respondent:[5]

“ …found that she had fallen asleep, and he just let her sleep. Around 2 p.m. she had slept for an hour, because the business hour of the shop - the club - was 3 p.m., he tried to wake her up. She responded, but she did not wake up, so he let her sleep.”

13. In light of the mitigation advanced by Mr Adams, the following discussion ensued between the judge and Ms Jasmine Ching for the prosecution:[6]

“ COURT: Mr Adams said in mitigation that the prosecution accepts they are unable to prove that the defendant drugged the woman concerned. Is that correct?

MS CHING: My Lord, I would not put it that way. I would say that the prosecution did not charge the defendant for having drugged the victim, and therefore the prosecution did not and will not rely on this evidence or the likelihood of this, and because...

COURT: It means that those advising felt that they were unlikely to secure a case to answer.

MS CHING: I would say that it is not -- I’m not saying that the prosecution is unable to prove, but we did not seek to prove.

COURT: The fact is you could have charged administering a noxious substance.

MS CHING: Yes, this would be the...

COURT: And the prosecution did not, and there we are.

MS CHING: This is -- yes, this is the correct description, I would say. And therefore we did not -- we confirm that we did not rely on the fact that the defendant has or suspect to have drugged the victim. We confirm that. But it is not the case that we are not able to prove, but did not seek to prove.

And may I also...

COURT: And by the fact that you have accepted the plea.

MS CHING:  Yes.”

14. Of the fact that the prosecution had invited the judge to order that the count of the rape of Ms X lie on the file, the following exchange ensued between the judge and Ms Ching:[7]

“ COURT: … I must take it that you accept that penetration, even the smallest amount of penetration, is not proved or could not be proved.

MS CHING: This we accept. We could not prove, or we could not conclusively -- yes.

COURT: Well, you could prove it beyond reasonable doubt or you could not prove it beyond reasonable doubt.

MS CHING: I’ve -- yes. We could only -- if it goes to trial it is a matter of inference, and we are not sure how the jury will think.

COURT: Well, you couldn’t...

MS CHING: But given the case as it is -- yes.

COURT: By the acceptance of the plea, I must take it you accept it.

MS CHING: Yes.

COURT: Accept the defendant’s claim, that although he would like to have penetrated, he didn’t penetrate because the girl said no.

MS CHING: Yes. In fact, because the girl could not recall anything, so...

COURT: No, that’s it; she can’t.

MS CHING: ...we could not rebut this saying, I must say.

COURT: She can’t.

MS CHING: But I just wish to highlight that this is what (was) put through the defendant’s counsel rather than in the box.

COURT: I appreciate that, yes.

MS CHING: Yes. But I accept that we -- even he goes to box we could not disprove this because the girl could not recall.

COURT: Couldn’t seek to counter it.”

15. On 22 September 2016, the judge articulated his determination of the factual basis on which he approached sentencing the respondent:[8]

“ …I want to make it very clear the basis on which I am dealing with the question of your sentencing.

I accept that although alprazolam and clozapine were found in the woman’s bloodstream, there is no evidence that you administered those substances to her. And the prosecution must also accept that, because although you were arrested for an offence of administering drugs to obtain or facilitate intercourse, the Department of Justice, on reviewing the evidence, chose not to lay such a charge against you under section 121 of the Crimes Ordinance.

There is no evidence as to how alprazolam and clozapine got into her bloodstream, and I cannot speculate as to how or why traces of clozapine were found on a glass in the darts centre.

I also accept, as do the prosecution by their decision to accept your plea of guilty to the alternative count of indecent assault and to ask that the court order that the count of rape, to which you pleaded not guilty, be laid on the court file, that they accept that you did not penetrate the woman’s vagina with your penis.

I accept your account advanced through your counsel, Mr Adams, of how at the time of the incident you removed your trousers and underpants, thus exposing your penis, and of trying to remove the woman’s underpants aside after you had removed her shorts in preparation for penetrating her, but that you desisted when she asked you to stop.

I accept that the presence of traces of semen on her underpants and the lower swab taken from her vagina were more than likely caused by the presence of your penis in an extended state close to her vagina, and that, as the prosecution accepts, they are not indicative of vaginal penetration.

I also accept, from the many text messages passing between the woman and yourself from 15 March to 19 March 2014, that there was a friendship between you, and that to some extent her approach to you in those messages was flirtatious and that you had reason from that to believe that she may have been open to you making sexual advances to her.”

Reasons for sentence

16. For purposes of sentencing the respondent on 18 October 2016, the judge received a report prepared by the Probation Service in respect of the respondent’s suitability to be made the subject of a Community Service Order and a psychological report in respect of Ms X.  The former report recommended the respondent as being suitable to be made the subject of a Community Service Order.  Having noted “the remorseful attitude of the accused, past stable employment history and good family support”, it concluded that “the accused may stand a good chance to rehabilitate in the community.”

17. The psychological report in respect of Ms X prepared by Ms Ng Wai Shan, a clinical psychologist, said that she had disclosed:[9]

“ …that the offence was a traumatic experience to her. In the past 2½ years, she had recurrent re-experiencing of the assault as if it was happening again. She not only had distressed by the flashbacks of the assault but also had distressing dreams of it. She often had trouble falling asleep or staying asleep because of pictures or thoughts of the assault came into her mind. She often had waves of strong feelings about it. She had made deliberate efforts to avoid thoughts, feelings and conservation associated with the assault. She was angry and sad about the offence. She does not consider herself as worthwhile and useful as she used to. Her self-esteem is impacted as she felt like she is a total failure as a person who’s unable to protect herself from danger. The defendant abused her trust in their friendship that has negatively impacted her sense of self and relationship development in her early adulthood.”

18. Of the psychological testing of Ms X, Ms Ng said that a score of 55 in an Impact of Event Scale suggested “…that she is symptomatic of severe post-traumatic stress and that she displayed “severe depressive symptoms, moderate anxiety and moderately hopelessness to an extent that she has lost confidence in herself and gets very little pleasure from the things she used to enjoy.”[10] In the result, Ms Ng expressed the opinion that Ms X met “the full diagnostic criteria of post-traumatic stress disorder and major depressive disorder according to the diagnostic and statistical manual of mental disorders - 5^th edition (DSM-5, 2013).”[11] She recommended that Ms X receive psychological treatment.

19. In sentencing the respondent, the judge said:[12]

“ …the question of your sentence has caused me a great deal of concern and reflection. You have pleaded guilty to committing a very serious and a very wicked act. I have it very much in the forefront of my mind that it was an act committed against a woman who was, for some reason, semi-conscious. I now have before me a psychologist’s report in relation to that young lady which tells me that, in the psychologist’s opinion, she is suffering from post-traumatic stress disorder and depression, and that is related to what you did to her.”

20. On the other hand, the judge noted that the respondent was a hard-working man of good character, who had been actively involved in animal welfare and charitable work involving disadvantaged children and the elderly in Hong Kong, with a supportive family.  In addressing the issue of whether or not it was appropriate to impose a custodial sentence on the respondent, the judge said:[13]

“ …there is a very strong possibility that if you were in prison for this offence, it would break your spirit, it would destroy or damage all the positive aspects of your character and that, on discharge from prison, you would be unable to obtain employment and become a drain on society.”

21. Having noted that the probation report stated that the respondent was a suitable candidate to be made the subject of a Community Service Order, which order was sought on the respondent’s behalf, the judge observed that this Court had said repeatedly that Community Service Orders “… are not soft options and it is accepted that they are viable alternatives to sentences of imprisonment.” [14]

22. In the result, the judge ordered that the respondent be subject to a Community Service Order for the maximum period of 240 hours.

The applicant’s submissions

23. In her written submissions for the Secretary for Justice, Ms Vinci Lam, with her Ms Ching, submitted the sentence imposed on the respondent failed to reflect the gravity of the offence, in particular having regard to the features of aggravation in the commission of the offence, namely that:

(a) the respondent preyed on a victim who was unconscious;

(b) even on the respondent’s version, his actions were just short of rape (his sperm and semen being found on the victim’s underpants and low vaginal swabs respectively), so that the indecent assault was the worst case of its type;

(c) the respondent failed to wear a condom despite having exposed his penis and professed an intention to penetrate her vagina; and

(d) given that the respondent was 9 years older than Ms X, he abused her trust as a friend seeking advice.

24. Secondly, it was submitted that the judge erred in placing too much emphasis on the effects of his sentence on the respondent, whilst giving insufficient regard to the impact of the offence on the victim.  Thirdly, the sentence failed to sufficiently address considerations of deterrence and retribution.  Sentencing in cases of indecent assault required regard to be had to the need to deter others, to mark the public abhorrence of such crimes and to redress the grievances suffered by the victim, her relatives and friends.[15] Finally, it was submitted that the version of events advanced in mitigation by Mr Adams and accepted by the judge, namely that Ms X had willingly engaged in sexual intimacies with the respondent, was contrary to the Summary of Facts, in particular that Ms X “completely lost her consciousness.” [16] 

The respondent’s submissions  

25. In his written submissions, Mr Adams submitted that the Whatsapp messages between the respondent and Ms X produced to the judge during mitigation was a proper basis for the judge’s finding that there was “a friendship between you” and that “to some extent her approach to you in those messages was flirtatious and that you had reason from that to believe that she may have been open to making sexual advances to her.” [17]

26. Similarly, Mr Adams submitted that the judge was entitled to determine that there was no evidence that the respondent administered substances to Ms X, which finding was accepted by counsel for the prosecution.  Further, the Summary of Facts made it clear that the respondent had desisted in his attempts to penetrate Ms X’s vagina when she objected.

27. Next, Mr Adams submitted that, given that Ms X was a mature woman living with her boyfriend and that she conducted her own business, there was no question of a breach of trust by the respondent.

28. Then, he submitted that the applicant could not complain now that the mitigation advanced on behalf of the respondent before the judge was inconsistent with the Summary of Facts.  No issue was taken before the judge at the time of mitigation on 21 September 2016.  On 4 October 2016, when the prosecution took issue with the mitigation advanced earlier, it did so only on the basis of whether or not there was an equivocal plea.[18]

29. Next, Mr Adams informed the Court that on 4 October 2016 the defence had been served with an email from Ms X as unused material.  That material had not been put before the judge.  The email described the impact of the offence on Ms X and her complaint that that information had not been put before the judge.  Given that the prosecution sought to put a victim impact statement before the judge that email was in a form by which such a statement could have been presented to the judge.  The failure of the prosecution to put the information before the judge was very serious.  Mr Adams submitted that the applicant should not be permitted to redress the consequences of that failure by an application to review the sentence imposed on the respondent.

30. Finally, Mr Adams invited this Court to have regard to the long delay in the prosecution of the case against the respondent. The offence had occurred on 19 March 2014, well over three years earlier.  The respondent had pleaded guilty to the count of indecent assault on 21 September 2016 and had been sentenced on 18 October 2016.  The long delay and the uncertainty as to his future, given the application for review of sentence, had been stressful to the respondent.

A consideration of the submissions

31. At a pre-trial review on 29 August 2016, the judge had been informed by the parties that, subject to the acceptance by the respondent of a Summary of Facts to be prepared by the prosecution, the prosecution would accept a plea to the alternative count of indecent assault.[19]  Then, on 21 September 2016 the respondent was arraigned on both counts on the indictment.  Having pleaded guilty to the count of indecent assault, as is the usual procedure, the Summary of Facts was read out in court and the respondent confirmed that he admitted those facts.[20]

32. The respondent’s acceptance of the Summary of Facts is highly relevant to the primary submission advanced by Ms Lam in her oral submissions, namely that the mitigation advanced on behalf of the respondent and accepted by the judge in respect of the sexual intimacies alleged to have occurred between the respondent and Ms X at the Darts Club in the early afternoon of 19 March 2014 was inconsistent and in conflict with the Summary of Facts, insofar as it was contended that Ms X’s participation in sexual intimacies was “voluntary”.  On the contrary, in accepting the Summary of Facts the respondent accepted that Ms X came to be on a sofa in the Darts Club only because she had become very dizzy having consumed the drinks given to her by the respondent and that having lain on the sofa she “fell asleep”.  In context, however she might have come to ingest the alprazolam and clozapine detected subsequently in her urine and blood, it is clear that Ms X’s sleep was a drug induced stupor.  As paragraph 5 of the Summary of Facts made clear, Ms X was raised from that stupor only to resist briefly molestation of her torso and breasts, after which she lost consciousness.

33. Clearly, in that state of unconsciousness Ms X could not and did not consent to any sexual intimacies with the respondent.  It is clear that in advancing the mitigation that he did on behalf of the respondent, Mr Adams was aware of the conflict between that mitigation and the Summary of Facts.  At the outset before embarking on a description of the alleged consensual sexual intimacies, Mr Adams said:[21]

“ This is what the defendant says, and I hope your Lordship does not find it inconsistent with the Summary of Facts.”

34. As noted earlier, although the Summary of Facts stated that the respondent “admits having indecently assaulted X”, it did not condescend to any particularity as to the indecent acts.  In answer to questions from the Court, Ms Lam said that it was the prosecution case that it was to be inferred from the presence of the respondent’s semen on the crotch of Ms X’s underpants that his exposed penis had come into contact with her underpants.  That also explained the presence of his semen on the low vaginal swabs taken from Ms X.  That was the indecent assault.

35. The mitigation advanced on behalf of the respondent confirmed the validity of the inferences the respondent said was to be drawn from the finding of the respondent’s semen on the crotch of Ms X’s underpants and on the low vaginal swabs taken from Ms X.  As noted earlier, in putting the respondent’s case, Mr Adams said that the respondent “did not take off her knickers, her underpants.  He continued to hug and kiss her and he used his erect penis to rub her panties.”

36. For his part, Mr Adams contended that the indecent assault by the respondent on Ms X lay in the fact that, having desisted in his movements to push aside her panties, so that he could penetrate her vagina with his penis, in face of her demand that he stop, the respondent had done so but had nevertheless gone on to ejaculate on her underpants.

37. With respect to the judge, it is surprising that, in the absence of any particularity whatsoever in the Summary of Facts as to the nature of the indecent assault accepted by the respondent, he did not raise the issue with the parties.  It is all the more surprising that not having done so, the judge did not raise with Mr Adams the obvious conflict between the mitigation he was advancing in respect of an alleged consensual sexual activity between Ms X and the respondent and the Summary of Facts.  It was not possible for the unconscious Ms X to consent to sexual activity with the respondent.

38. For her part, after Mr Adams had completed his mitigation on 21 September 2016, Ms Ching observed to the judge in respect of one aspect of that mitigation, but with obvious relevance to the mitigation as a whole, that what had been advanced was “…through the defendant’s counsel rather than in the box.” [22] However, at that stage she did not take issue in terms and with particularity with the conflict between what was advanced in mitigation and the Summary of Facts.

39. At the hearing on 4 October 2016, Ms Ching did raise the issue of that conflict:[23]

“ It is that last time if, my Lord, you may remember that when Mr Adams, referring to his client’s instruction as to what happened at the time or the material time, and one of the version is that in fact the victim was not -- or the complainant was not completely unconscious and there were times that they hug and kiss, and it wasn’t till the defendant was pushed away by the complainant, then he stopped, though just a moment before that he was about to penetrate.

COURT: Yes.

MS CHING: Yes. This is accepted by the court that there is no penetration, we accept that, but...

COURT: Yes. You’ll accept that.

MS CHING: ...this raise the issue whether it seems that by saying that before that moment, it seems that the defence is putting forward the fact that there was consent before that moment. I just want to make sure this is not an equivocal plea, because consent is an issue, and we are...

COURT:  I’m fully aware of that.”  [Italics added.]

40. We are satisfied that in stipulating on 22 September 2016 the basis on which he approached sentencing the respondent and stating in terms that he accepted the mitigation advanced on behalf of the respondent by Mr Adams of the steps taken by the respondent in his sexual advances towards Ms X the judge was accepting the primary submission that that conduct proceeded with her consent.  That was relevant to the finding he made immediately thereafter in respect of the Whatsapp messages passing between Ms X and the respondent, namely “…to some extent her approach to you in those messages was flirtatious and that you had reason from that to believe that she may have been open to you making sexual advances to her.” [24] On the other hand, the latter finding was irrelevant if the sexual advances made by the respondent on Ms X had been committed when she was unconscious.

41. For the reasons that we have given, namely that it was made clear in the Summary of Facts that Ms X was not conscious at that time, the judge fell into error in making that determination.  The judge’s approach to sentencing miscarried and the sentence imposed was manifestly inadequate.  Accordingly, it falls to this Court to sentence afresh.

42. The gravity of the offence was the respondent’s conduct towards an obviously unconscious and vulnerable woman.  The respondent’s conduct fell just short of rape.  Clearly, a deterrent sentence was required.

43. We accept the judge’s finding that the respondent was not only a person of good character, in the sense that he had no previous criminal convictions, but also a person of “some worth” to society in that he was a hard-working man who had an active interest in the welfare of animals and who had been concerned in activities for the benefit of the elderly in Hong Kong.[25] Also, we accept that the respondent is a skilled darts player who has represented Hong Kong at this sport.  Clearly, the respondent’s conviction for this offence is a startling fall from the life that he has led hitherto.

Starting point for sentence

44. In all the circumstances, we are satisfied that the appropriate starting point to be taken for sentence is 4 years’ imprisonment

Discount

45. The respondent is entitled to a discount from the starting point of ⅓ to reflect his plea of guilty.  In addition, we are satisfied that it is appropriate to give the respondent a further discount of 3 months’ imprisonment to reflect the fact that he has performed 136 hours of the 240 hours of Community Service to which he was subject.  Finally, given that the respondent, a man of good character, is now to be sent to prison, having been spared that punishment when he was sentenced on 18 October 2016,[26] and having regard to the fact that the offence was committed some 38 months ago and that the respondent was not charged for 15 months after his arrest, we are satisfied that it is appropriate to afford the respondent a further discount of 5 months’ imprisonment.

Conclusion

46. In the result, having allowed the appeal of the Secretary for Justice and quashed the sentence imposed by the judge, we imposed a sentence of 2 years’ imprisonment.

[1] Appeal Bundle; page 16 paragraph 5.

[2] Appeal Bundle; page 20, paragraph 22.

[3] Appeal Bundle; page 20, paragraph 23.

[4] Appeal Bundle, pages 31 O - 33 G.

[5] Appeal Bundle, page 33 M-O.

[6] Transcript of mitigation on 21 September 2016; Appeal Bundle, pages 48 I - 49 A.

[7] Transcript of mitigation on 21 September 2016; Appeal bundle, page 49 B-S.

[8] Appeal Bundle, page 55 B-S.

[9] Appeal Bundle; page 89, paragraph 3.2.

[10] Appeal Bundle; page 89, paragraph 4.1.

[11] Appeal Bundle; page 89, paragraph 5.1.

[12] Appeal Bundle; page 134 M-Q

[13] Appeal Bundle; page 135 M-O.

[14] Appeal Bundle; page 135 R-S.

[15] HKSAR v Chan Ching Ho [2000] 3 HKLRD 476; HKSAR v Leung Chi Kei [2009] 5 HKC 261 and HKSAR v Ho Tung Yuen [2011] 5 HKC 586.               

[16] Summary of Facts, paragraph 5; Appeal Bundle, page 16.

[17] Transcript of 22 September 2016; Appeal Bundle, page 55 Q-S.

[18] Transcript of 4 October 2016; Appeal Bundle, pages 68 M - 69 B.

[19] Appeal Bundle; pages 21-22.

[20] Appeal Bundle; page 24 M-O.

[21] Appeal Bundle; page 30 P-Q.

[22] Appeal Bundle; page 49 Q.

[23] Appeal Bundle; pages 68 M - 69 B.

[24] Appeal Bundle; page 55 R-S.

[25] Appeal Bundle; page 135 B-I.

[26] Attorney General v Wong Kwok Wai [1991] 2 HKLR 384; Silke VP at 389 I:

“Where the respondent has been at liberty since conviction because of the nature of the sentence imposed… then a discount would usually be given, the amount depending on the particular circumstances.”

Cited with approval in Secretary for Justice v Siu Yun Yee (CAAR 6/2016; unreported, 17 May 2017) at paragraphs 52-60.