Z v Hksar

CourtCourt of Final Appeal (Hong Kong)
Judgment Date22 Mar 2007
Citation[2007] 1 HKLRD 977; (2007) 10 HKCFAR 183
Judgement NumberFACC9/2006
SubjectFinal Appeal (Criminal)
FACC000009/2006 Z v. HKSAR

FACC No. 9 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2006 (CRIMINAL)

(ON APPEAL FROM CACC NO. 506 OF 2004)

____________________

Between:

Z

Appellant

and

HONG KONG SPECIAL ADMINISTRATIVE REGION

Respondent

____________________

Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Lord Scott of Foscote NPJ

Date of Hearing: 9 March 2007

Date of Judgment: 22 March 2007

____________________

J U D G M E N T

____________________

Chief Justice Li:

1. It is the policy of the courts to take into account in mitigation of sentence useful assistance the defendant had given to the authorities and usually to give an appropriate reduction from the sentence which the defendant would otherwise have received. The assistance is most often given by the defendant after his arrest for the offence for which he is being sentenced (“post-arrest assistance”). There may be occasions where the assistance is given by the defendant before his arrest (“pre-arrest assistance”). The question of law arising in this appeal is whether pre-arrest assistance should be taken into account in mitigation of sentence. The Court of Appeal had held that it could not be taken into account.

The facts

2. On 13 November 2004, after pleading guilty to five charges of fraud and four charges of theft, the appellant was sentenced in the District Court (Judge Line) to a total of five and a half years’ imprisonment. The offences were committed over a period of about 13 months between 5 June 2003 and 20 July 2004. The appellant had preyed on six female victims and had used his charm to defraud them of sums totalling over $1.4 million from their savings.

3. After committing the first three offences between June and September 2003, the defendant was first arrested on 17 September 2003 for these offences but was released on police bail pending further inquiries. Four days later, on 21 September 2003, he committed the fourth offence. He was arrested on 21 November 2003. After refusal of bail by the magistrate, he was granted bail by the Court of First Instance. He then committed five further offences between May and July 2004.

4. The appellant has a most appalling record of dishonesty and was rightly described by the Court of Appeal as plainly a “hardened confidence-trickster”. Now in his mid 40s, he had appeared before the courts on seven previous occasions involving 24 criminal offences including criminal deception, blackmail and theft for which he had served over ten years’ imprisonment. He first went to prison in 1989. In 1995, he was sentenced to imprisonment, the term of which was reduced on appeal by one year to two and a half years on the ground that he had provided material assistance to the police. This was followed in 1996 by a sentence of seven years’ imprisonment to run consecutively to the sentence he was already serving. He again sought reduction of sentence on appeal on a similar ground but was unsuccessful. The Court of Appeal held that the sentence had already adequately taken into account his co-operation with the police. The appellant was released from prison in September 2001.

The appellant’s pre-arrest assistance

5. As noted above, the appellant was first arrested in connection with the first three offences in the present case on 17 September 2003. Some five months previously, on 18 April 2003, he had provided information to the police. He informed them that a number of illegal immigrants would be coming to Hong Kong from the Mainland on 24 June 2003 to commit robbery with firearms and that he had been asked to pick them up from a particular location on the shoreline of Lantau. The appellant attended at the location with the police on the day in question when three illegal immigrants were intercepted by the police. The appellant refused to be a witness. He did not give a witness statement and was given an assurance that he would not be listed as a prosecution witness. One illegal immigrant was repatriated following court proceedings. Another was sentenced to two years’ imprisonment for aiding and abetting illegal immigrants to come to Hong Kong. The third was convicted in February 2004 after trial for possession of a firearm and ammunition without a licence and was sentenced to 12 years’ imprisonment.

6. When the appellant provided the information to the police on 18 April 2003, he was not the subject of police investigation. He knew the police officer to whom he provided the information as the officer had arrested him on past occasions which led to his previous convictions. And they had recently renewed contact. In providing the information, he did not obtain anything in return. In particular, he was not paid any sum for the information.

7. In November 2004, when the appellant was sentenced in the District Court, the appellant did not rely on his assistance to the police as a mitigating factor. His explanation is that he was then unaware of the conviction and sentence of the third illegal immigrant in February 2004. After he was sentenced, he learnt of that conviction and sentence. He appealed to the Court of Appeal against sentence on the sole ground that it should be reduced because of the assistance he had rendered to the police.

The Court of Appeal

8. The Court of Appeal (Stuart-Moore VP and Yuen JA) dismissed his application for leave to appeal. It held that no discount should be given for any pre-arrest assistance. It stated that:

“10. … The courts do not offer discounts to those who have acted as informers before their arrest as they will have had...

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