HKSAR v. CHAN YUK SAN

CACC 391/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 391 OF 2002

(ON APPEAL FROM HCCC 174/2002)

____________

____________

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

1. On 15 July 2002, the Applicant, aged 42, pleaded guilty in the Court of First Instance before Mr Recorder C Y Wong, SC, to a count of robbery. Having adopted a nine-year starting point, the judge reduced this to 71/2 years' imprisonment in the light of the Applicant's plea of guilty.

2. There is effectively only one ground of appeal which is advanced by Mr Hoosen in his written argument on the Applicant's behalf, namely, that the Recorder gave an invalid reason for not allowing the Applicant the usual one-third discount on his plea.

3. As no criticism has been made of the starting point, it is unnecessary to go into any of the facts beyond saying that as this was what has come to be known colloquially as a "head-bashing" robbery, plainly the starting point was appropriate.

4. During the mitigation, the judge commented to defence counsel:

"What about the fact that he was caught red-handed? Do I not have to take that into account ... in considering whether I should give him the full discount?" (Appeal bundle pp. 5-6)

5. Unfortunately, neither defence nor prosecuting counsel corrected the false impression which the Recorder seemed to have expressed by his question, on a sentencing issue which is well settled. We have said on numerous occasions that a reduced discount should not be given to anyone merely because he has more or less been caught in the act.

6. All we perhaps need to do in the present circumstances is to recite what was said in a similar situation in HKSAR v. Chan Sai Chiu [2001] 1 HKLRD 478 at 481-482:

"Ground 2 attacks the Judge's approach to the discount he awarded the applicant for his plea of guilty when he allowed a discount of only 25% because the applicant had been "caught virtually red-handed in possession of the stolen property".

We do not know how often we have had to emphasise that this is not a proper basis on which to reduce the discount. Ms Sin, for the respondent, concedes that the Judge in this respect had fallen into error. In HKSAR v. Chu Shi Keung [2000] 1 HKLRD 495 at p. 497, [2000] 1 HKC 576 at p. 578 which was decided some months prior to the sentence which was passed in the present case, this Court made the position abundantly plain with these words:

'However, being "caught red-handed" has not for a considerable time been one of the criteria for a failure to give the normal discount for a timely plea. Counsel must know how to advise their clients when they are minded to plead guilty and, if a wide discretion is given, as Mr Joseph To for the respondent appeared to be arguing, to judges in deciding whether or not to give a full discount for plea, counsel will understandably be unable to give sensible advice and defendants will be left with a justifiable grievance if the discount they expected to receive was not in the event given to them.

A classic example, amongst many, to illustrate why a person caught in the act should be afforded the full discount is provided in the many cases of trafficking in drugs where the courier is caught in possession of dangerous drugs. In this example, and in many others, it is easily alleged that the evidence has been planted or fabricated so that a true expression of remorse represented by a plea of guilty, even in circumstances where the evidence is apparently overwhelming, is still deserving of the full discount.'

There were several other earlier cases in which sentiments along similar lines had been expressed. When the practice of giving reduced discounts to offenders who had been caught red-handed appeared to have continued even after these judgments, we emphasised it again in HKSAR v. Lo Chi Yip & Another [2000] 3 HKLRD 270 (where judgment was given on 21 July 2000). In the course of that judgment, with reference to reduced discounts for being caught red-handed, (at p. 277) the Court said:

'The recent authorities on this aspect of sentencing are copious and the sentencing practice which used to allow for reduced discounts in cases where the offender was caught red-handed have long since been disapproved. It suffices to make reference to the case of HKSAR v. Wong Ka Kuen & Another (unrep., CACC No. 35 of 1998). Even if a copy of the judgment in that case had not been provided to the sentencing judge, the topic is covered in Messrs Cross and Cheung's most excellent book of reference: Sentencing in Hong Kong. The relevant passage for present purposes is concisely set out by the learned authors at p. 253 which reads:

"Yet in HKSAR v. Wong Ka Keung [sic] & Another (unrep., CACC No. 35 of 1998), it was said that "being caught 'red-handed' is not, in the view of this Court, a sufficient reason to disallow the full discount." There the matter currently rests."

Nothing could have been clearer. If we appear to have laboured the point, it is because we can see no reason why this recurring error in the approach to discount should arise again in cases where offenders have entered pleas of guilty and are said to have been caught in the act of committing the offence in question.'"

7. The same comments remain as relevant today as they were then and we need not add to them.

8. It is clear as Ms Wong, on behalf of the Respondent, has accepted, that there was in this case an error of principle which has resulted in the Applicant receiving a sentence which was manifestly excessive. In those circumstances, we did not need to call upon Mr Hoosen to argue the matter.

9. Accordingly, we shall grant leave and treating the hearing as the appeal, we allow the appeal to the extent that the Applicant's sentence will be reduced to 6 years' imprisonment. This has the affect of giving him the one-third discount to which he was always entitled after he had entered a timely plea of guilty.

10. This was a fundamental error of sentencing practice which would never have come before this court if counsel had corrected the Recorder's mistake at the time of sentencing. We take this opportunity of reminding counsel of their duty towards the court when an error is obviously being made, or is about to be made, to put it right or to seek to do so before it is too late. This responsibility applies as much to prosecuting counsel as it does to defence counsel whose client is being sentenced.