HKSAR v. HO CHUN-PONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.164
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 10th February 1998, this Applicant pleaded guilty to a single charge of burglary when he appeared before Judge Wilson in the District Court. He was sentenced to two years and three months' imprisonment for the burglary and a suspended sentence of two months' imprisonment for managing a vice establishment was activated consecutively, making two years and five months in all.

2. The Applicant now seeks leave to appeal against his sentence on the ground that it was much too heavy. He has, in particular, expressed concern about the activation of the suspended sentence because, he says, there has been an intervening offence dealt with in the court when his suspended sentence was not activated by another judge.

3. The offence which he refers to was the theft that was dealt with in July 1997. We do not know why the judge decided in that case that the suspended sentence should not be imposed or should not be activated consecutively. What we do know is from Mr. Francis Lo, on behalf of the Respondent, who was instructed by a police officer sitting behind him, that it is possible that the police record had not been updated. We have expressed our concern about that because, if this is so, it means that the police record would have taken more than 13 months to be updated, bearing in mind that it was in June 1996 that the suspended sentence was imposed. Mr. Lo has very responsibly undertaken to make sure that, as this is a possibility, it will be investigated and looked into in case the system requires reform.

4. We can say immediately in this particular case that the starting point taken by the judge of three years' imprisonment was entirely correct. This was a domestic burglary in which a number of electric goods were stolen. However, in passing sentence the judge said that he would not give the Applicant the full discount because "he was effectively identified red-handed by the video system". He then discounted only nine months instead of the usual one-third.

5. This court has said on countless occasions that where a plea of guilty is entered at an early stage and where the defendant has not absconded, the full one-third should be given as the discount for a plea of guilty unless there is some compelling reason why it should not be given. The fact that the case may be so strong as to be overwhelming, such as in those cases where culprits are caught red-handed, is not a sufficient reason to give less of a discount on sentence than to those who plead guilty facing a less compelling case. Unless consistency is maintained, it will, or may lead to unfairness, where differing criteria are applied by different judges as to what may be factors that affect the amount of the discount credited for a plea of guilty. Furthermore, it is an important matter for those who advise defendants who are minded to plead guilty, that they are able with confidence to advise their clients as to the policy which is adopted by the courts.

6. Accordingly, we shall give leave to appeal. The sentence imposed was wrong in that it included an insufficient discount. The full discount of a year should have been credited to the Applicant. To this extent, treating the hearing as the appeal, we shall allow the appeal to the extent that the sentence on the burglary charge is reduced to two years' imprisonment. The suspended sentence was properly activated and made consecutive so that the total sentence is two years and two months' imprisonment.