R. v. CHOI KUK SHEK, KENDY

IN THE COURT OF APPEAL

1994, No. 326
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence.

2. The applicant Choi Kuk-shek was convicted by His Honour Judge Caird in the District Court on 26 May 1994 on one charge upon his own guilty plea of conspiracy to defraud. He now applies for leave to appeal against the sentence of two-and-a-half years' imprisonment imposed by the judge. He is 24½ years of age. At that time, the applicant was serving sentences of imprisonment totalling 11 years 4 months in respect of two previous convictions: one for wounding in the District Court and one for robbery and firearms offences in the High Court. The judge ordered that the term of two-and-half years he imposed be partly concurrent, to commence upon the expiration of 10 years of the previous sentences, with the result that the applicant was ordered by the judge to serve a total of 12 years and 6 months.

3. The conspiracy involved the use of forged credit cards to obtain cash advances from a store in which the appellant's sister Choi Yuet-yu was an employee. The amount obtained was $27,500.

4. In his written grounds, the applicant complains that his sister, Choi Yuet-yu, was only sentenced to imprisonment for one year and nine months, a term which was nine months less than his. But she, unlike the applicant, was a first offender, aged 22; and it would seem from the facts that, unlike the applicant, she did not profit from her crime. In relation therefore to those written grounds of appeal there appear to be no cause for complaint.

5. However, there are two matters which cause us concern. Firstly, in sentencing the applicant, the judge took three years three months as his starting point; giving credit for his guilty plea and assistance to the ICAC he reached the figure of two years six months. At that time the applicant had not testified in criminal proceedings though there was an offer by him to do so. The offer related to an accomplice then charged in the District Court and the offer was to testify in those criminal proceedings. Obviously it was difficult for the judge to assess the value of the assistance which he was offering. Nevertheless, the discount totalling nine months which the judge gave for the guilty plea, the assistance to the ICAC and the offer of further assistance appears to us to have been less than generous. Be that as it may, things have changed since the time of sentence and we move to the second point of concern which is this.

6. The two convictions which, at the time of sentence, this applicant was serving were, as we have said, one for wounding in the District Court and the other for robbery and firearms offences in the High Court. In relation to the wounding charge the conviction has been quashed on appeal, with the result that the term of imprisonment which the applicant is now serving relates only to the conviction in the High Court, amounting to a sentence of nine-and-a-half years. Obviously this now must be taken into account.

7. Having regard to the fact, as we have been told by Crown Counsel Mr Blanchflower, that the applicant has, since he was sentenced by His Honour Judge Caird, actually testified in the criminal proceedings against the accomplice, we feel that this is a factor which we can properly take into account. According to Crown Counsel, he gave his evidence in court in accordance with the statement to the ICAC and he has in effect carried out the promise which he impliedly gave at the time he was sentenced.

8. Having regard to all these factors, in our judgment the application for leave should succeed. Treating the hearing of the application as the appeal, we set aside the sentence of two years six months imposed by the judge. We substitute for that a sentence of 18 months' imprisonment to be served upon the expiration of nine years of the sentence imposed by the High Court which he is now serving. To this extent, therefore, the appeal against sentence succeeds.