HKSAR v. LEE CHI WAI

HCMA 573/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 573 OF 1998

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J U D G M E N T

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1. This is an appeal against (1) a sentence of 14 days' imprisonment imposed for an offence of assaulting a police officer (which appeal the appellant is not now pursuing) and (2) a sentence of 4 months' imprisonment imposed on 5th June 1998 in the North Kowloon Magistrate's Court following the appellant's plea of guilty to an offence contrary to section 90(1) of the Criminal Procedure Ordinance.

That subsection reads as follows:

"If a person has committed an arrestable offence any other person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does without lawful authority or reasonable excuse, any act with intent to impede his apprehension or prosecution shall be guilty of an offence."

Subsection 3 of section 90 provides for a maximum sentence, upon summary conviction, of a fine of $5,000 and to imprisonment for 2 years.

2. Upon notification of his appeal against the sentence of 4 months imposed, the appellant was allowed bail pending the hearing of that appeal. The offence, to which as I say the appellant pleaded guilty, can be shortly stated as follows.

3. On 25th January 1997 a fire was started in 'Karaoke' premises in Tsimshatsui and, as a consequence of it, 17 people died. A number of suspects were arrested and charged with murder. During their enquiries the police sought a further suspect who was a close associate of the appellant. They could not find him. As of today they have still not been able to find him and bring him to justice. On 24th August 1997 the appellant was stopped by the police in Mongkok and further enquiries concerning him revealed that he was a wanted person in respect of the January fire. Under caution the appellant said that he was not responsible for starting the fire but that he was aware of it because his associate had told him about it. The appellant went on to say that in early February 1997 he had loaned his associate some $3-4,000 for the express purpose of assisting him to flee from Hong Kong. The appellant was duly charged with the offence and he pleaded guilty to it in February 1998. Sentence was deferred, for reasons which I shall come to shortly. That then was the offence. The appellant knowing or believing his associate to have been at least in part responsible for the deaths of the 17 people who died in the fire loaned him money to escape from Hong Kong. That was a grave offence and the learned Magistrate adopted a starting point of 9 months' imprisonment for it. He then reduced that sentence by 3 months' for the appellant's plea of guilty and reduced it by a further 2 months because of the assistance which he had given to the authorities.

4. On behalf of the appellant Mr Khosa advances two grounds of appeal as follows:-

"(a) that the starting point of 9 months' imprisonment was excessive in the circumstances and

(b) the discount of 2 months given for the appellant's assistance to the prosecution was too little."

5. As to the first ground of appeal Mr Khosa has sought to say that, and I quote part of his skeleton argument:-

"the assistance given by the appellant was merely lending $3-4,000 to a male ... to flee the territory. This was a one off transaction. No active part was taken by the appellant in assisting him to flee. The amount lent was not significant when compared with the total amount required for an illegal passage out of Hong Kong."

Mr Khosa then goes on to suggest that a deterrent sentence was not merited and that a starting point of 9 months' imprisonment was not justified given that the appellant was only aged 21 at the date of the offence, and that he only had one previous conviction for robbery in respect of which he had been sent to a Training Centre.

6. This first ground of appeal fails at the outset. In my view, given the nature of the offence, the starting point adopted by the learned Magistrate cannot be criticised.

7. As to the second ground of appeal; it has arisen in this way. Following his plea of guilty in February, sentence was deferred until after the appellant gave evidence for the prosecution in the Court of First Instance against a number of people charged with murder arising out of the January 1997 fire. He gave that evidence over a period of 3 1/2 days under an immunity from prosecution and he plainly did so, and further assisted the police, at considerable risk to himself and to has family.

8. In his most helpful 'reasons for sentence' the learned Magistrate makes it perfectly clear that he was fully aware of these matters and he approached them in the following way by saying

"So far as his assistance to the authorities (was) concerned I gave him a further discount but limited that to 2 months bearing in mind that (his associate) was still on the wanted list."

9. It seems to me, with respect, that in adding that limitation the learned Magistrate fell into error. What he said clearly demonstrates that he would have given a larger discount in sentence to the appellant had his associate not still been at liberty. That matter, or so it seems to me, was a factor for consideration in determining the criminality involved in the offence and in deciding upon the appropriate starting point in sentence, and not one for reducing a discount to be given for cooperation with the authorities.

10. Upon hearing this appeal on 5th February a further complicating factor was brought to my attention. Whilst he was on bail pending the appeal the appellant committed an offence of attempting to obtain a pecuniary advantage by deception, and 2 offences of obtaining such advantages. He pleaded guilty to each of those offences and, on 7th December 1998, he was sentenced to 6 months' imprisonment in respect of each of them, those sentences being expressed so as to be served concurrently as between themselves. The learned Magistrate in that case did not express whether or not those sentences should be served concurrent with or consecutive to the sentences of 4 months and 2 weeks imposed in June, but he was aware of those sentences, and of the appellant's assistance to the prosecuting authorities when he imposed the sentences of 6 months' imprisonment. It follows as a matter of law that such sentence is to be served consecutively.

11. I am told this morning by Mr Khosa that it is not the appellant's intention to appeal against the sentences of 6 months' imprisonment but, nonetheless, Mr Khosa has continued to urge me either to say that the 9 month starting point was too high and that the discount given was too low or that, in all of the circumstances of this case, there exist exceptional reasons which might justify a suspended sentence.

12. For the reasons which I have already given I find myself unable to agree with the submissions concerning the starting point or the imposition of a suspended sentence - but I do agree with the submission concerning the discount. Because it is my view that the learned Magistrate fell into error in not giving the full discount to which the appellant was entitled I allow this appeal - but only to the extent that the sentence of 4 months in respect of the section 90(1) offence be reduced to one of 3 months. That sentence reflects both the appellant's guilty plea and his very full cooperation with the police.

13. For the avoidance of any doubt the appellant will serve consecutively the total of 3 months and 14 days and 6 months' imprisonment.