HKSAR v. Y

CACC 230/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 230 OF 2004

(ON APPEAL FROM DCCC NO. 256 of 2004)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.  The applicant was convicted in May 2004, following a trial in the District Court before Judge Gill, on a charge of conspiracy to defraud.  He was sentenced to a term of 4½ years’ imprisonment against which he now seeks leave to appeal out of time.

2.  As no complaint is made about the 3-year starting point taken by the judge or the enhancement of that sentence by 50 percent to bring it to 4 years and 6 months, there is no need to rehearse the facts of the case in any detail.  It suffices merely to say that this was a sophisticated ‘street deception’ charged as a conspiracy to defraud a member of the public.  If it had been successful, the fraud would have benefited the gang to the extent of $100,000 although they had initially set out to make much more than this.

3.  The applicant was in Hong Kong as a visitor from the Mainland.  At no stage has he shown any remorse for what he did.  The judge’s starting point and his decision to enhance by 50 percent on the ground of prevalence under section 27 of the Organized and Serious Crimes Ordinance, Cap. 455, are rightly not criticised.

4.  There is, however, a new factor to be taken into account which gives rise to this late application.  This relates to the recent provision of material assistance to the police on the part of the applicant. 

5.  It is the contention of Mr Zervos SC, on the respondent’s behalf, that we should not entertain the application.  In his submission, the appropriate course to be adopted in the present circumstances is a petition to the Executive.  In saying this, Mr Zervos had in mind that the applicant has already made an unsuccessful application before the single judge for leave to appeal against conviction which was not renewed and that the time for making an application for leave to appeal against sentence expired in mid-June 2004. 

6.  This application is approximately 9 months late and, in this regard, Mr Zervos relied on what was said (at pages 2-3) by Mortimer JA in R v Mak Chan-pui, CACC 483/1992 (unreported) which was a follows:

“As this Court has said on a number of occasions, when assistance is given to the prosecuting authorities by a prisoner after sentence and after the time for appealing has expired, the proper procedure is for such an applicant to petition HE the Governor and not to seek further leave to appeal to this Court.  That course is still open to this applicant.  There are no grounds upon which this Court ought to allow this application which is refused.”

7.  In that case, the court was concerned with an application to treat a previous abandonment of an application for leave to appeal against sentence which explains what is meant by the phrase in the passage we have cited: “not to seek further leave to appeal to this Court”.  An application for leave out of time is a different matter altogether and, while there must be some limit placed on whether an application is so out of time that this court will not entertain it, this will depend on the circumstances of each particular case.  This court has always been able to consider the merits of an application for leave to appeal when made out of time, whereas on an application to treat a previous abandonment of such an application the court is not at liberty to do so.

8.  In the present case, it is plain that police officers saw the applicant not long after he had started the sentence imposed on him and it is accepted that he then provided information about a participant in a crime which had been committed on a much earlier date.  He did so, according to the applicant, solely in order to provide himself with a ground for seeking a reduction in his sentence.  The applicant was informed by police on about 4 March 2005 that the information he had given had led to the culprit he had named being sent to prison for more than two years on a plea of guilty and shortly thereafter the applicant filed his application for leave to appeal against sentence.  These circumstances have been confirmed by the police in writing.

9.  It is apparent that the application has merit and we propose in the circumstances which have arisen to entertain it under our powers contained in section 83Q(3) of the Criminal Procedure Ordinance.  However, we do not propose to approach this application in the manner which Mr Osmond Lam has, on the applicant’s behalf, invited us to do.  His initial submission was that following previous decisions of this court, such as in the example he selected of HKSAR v Ng Shek-yu, CACC 178/2000 (unreported), a 40 percent discount has been said to be appropriate for those who provide valuable assistance to the authorities without going so far as to give evidence against those about whom they have provided information.  This proposition has applicability, of course, only to those who have pleaded guilty.  It is well established that those who enter a timely plea of guilty will receive a one-third discount and it is this which is topped up to 40 percent in the case of someone who has given valuable assistance.

10.  Taking these factors into account, it is apparent that if the applicant had pleaded guilty and he had provided the same information to the police which we now know he gave at a later stage, the sentence of 4½ years’ imprisonment would have been reduced by 40 percent to about 32 months whereas the bare one-third discount would have left the applicant having to serve 36 months.  It is only the 4-month difference in discount to which the applicant is now entitled.

11.  Accordingly, we shall grant leave and, treating the hearing as the appeal, we reduce the sentence of 4½years to 4 years and 2 months’ imprisonment.  To this extent, the appeal is allowed.