Hon Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案書：

The Applicant and the 2nd defendant of the present case were jointly charged with one count of “conspiracy to steal”, contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong and sections 159A and 159C of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. The Applicant was sentenced to 16 months’ imprisonment. He now seeks leave to appeal the sentence.
申請人與同案的第二被告人共同被控一項「串謀偷竊」罪,違反《盜竊罪條例》(香港法例第 210 章)第 9 條及《刑事罪行條例》(香港法例第 200 章)第 159A 及 159C 條。申請人被判16個月監禁。申請人現就刑期提出上訴許可申請。

Facts
案情

The facts revealed that between 2010 and 2011, the Applicant and the 2nd defendant worked for “Lick Sang Rice Limited” (“Lick Sang”) as a warehouse attendant and a driver respectively. Upon discovering that the quantity of white rice stored in the warehouse did not tally with the entries in the computer record, “Lick Sang” carried out an investigation. The Applicant admitted to “Lick Sang” on his own initiative that he conspired with the 2nd defendant to steal rice. The 2nd defendant would load more rice than what was ordered by customers onto the truck. Initially, he asked the Applicant to feign ignorance. Subsequently, he gave the Applicant a share of $10 per pack, which sum was eventually increased to as high as $30 to $40 per pack. On the other hand, the 2nd defendant would sell the stolen white rice to shops at a lower price to make a profit. The Applicant surrendered himself to the police and handed over $152,000 being the total sum he had received from the 2nd defendant. Apart from pleading guilty, he also gave evidence against the 2nd defendant in court as a prosecution witness. He admitted that he had in fact already spent $40,000 to $50,000.
案情顯示在 2010 年至 2011 年間，申請人及第二被告人分別是「力生米業有限公司」(「力生」)的倉務員及司機。由於「力生」發現存在倉庫的白米數量與電腦紀錄不相符，故此進行調查。申請人主動向「力生」承認與第二被告人串謀偷米，第二被告人會把較訂單多的米放上貨車，最初要求申請人裝作不知，後來以每包 $10分給申請人，最後更達每包 $30至 $40，第二被告人則把偷回來的白米以較低價格售予店鋪圖利。申請人把第二被告人給他共 $152,000交出及往警署自首。申請人除了認罪外更成為控方證人，在庭上指證第二被告人。申請人承認自己其實也已用了 $40,000 至 $50,000。

District Judge Yiu adopted 2½ years’ imprisonment as the starting point. As the Applicant had pleaded guilty, handed over the stolen money on his own initiative and given evidence against the 2nd defendant in court, the Judge sentenced him to 16 months’ imprisonment.
區域法院法官姚勳智以 2½ 年監禁為量刑基準，由於申請人承認控罪，自動交出所獲贓款及出庭指證第二被告人，故此將刑期定為 16 個月監禁。

Grounds of appeal
上訴理據

Mr. Wong, Counsel for the Applicant, contends that the Judge should have adopted a lower starting point to reflect the difference between the Applicant’s culpability and that of the 2nd defendant. He submits that the 2nd defendant instigated the present offence and played a major role at the material times, but the Judge also adopted 2½ years’ imprisonment as the starting point in respect of the 2nd defendant. The 2nd defendant pleaded not guilty and was convicted after trial. As he had handed over some of the stolen money, the Judge sentenced him to 2 years and 3 months’ imprisonment. Taking into account the fact that the offence involved stolen money amounting to $2,786,000, we consider it appropriate for the Judge to adopt, as he did, 2½ years’ imprisonment as the starting point in respect of the Applicant. The “starting point” (in Chinese量刑基準, or量刑起點as it is commonly known) reflects the appropriate sentence for a first offender who has been convicted after trial of a particular type of offence or charge, absent any aggravating or mitigating factor specific to the case. See HKSAR v Ta Dinh Son also known as Bui Trong Khoai and Ngo Van Thanh CACC 348/2013.
代表申請人的王興偉大律師指姚法官應該採用一個較低的量刑基準，以反映申請人和第二被告人的不同罪責。王大律師指第二被告人是本案的始作俑者，他在犯案時扮演主要角色，但姚法官對第二被告人亦是採用 2½ 年監禁為量刑基準。第二被告人否認控罪，在審訊後被定罪。由於第二被告人交出部分贓款，姚法官將第二被告人的刑期定為兩年三個月監禁。在考慮控罪涉及偷竊款項達 $2,786,000，本庭認為姚法官將申請人量刑基準定為2½ 年是適當的做法。量刑基準或者一向所稱「量刑起點」是指法庭對一名初次犯罪的被告人，在審訊定罪後就某類罪行或其控罪所定的適當刑罰，但這基準並不包括案件特有的加刑或減刑因素，見：HKSAR v. Ta Dinh Son also known as Bui Trong Khoai and Ngo Van Thanh CACC 348/2013。

Mr. Wong also argues that, on top of the one-third discount (i.e. 10 months) to which he was entitled for his guilty plea, the Applicant was given an additional reduction of only 4 months for surrendering the stolen money to “Lick Sang” on his own initiative and giving evidence against the 2nd defendant for the prosecution, and this reduction is (it is submitted) manifestly inadequate. With respect, we do not agree. According to the authorities, where an applicant has pleaded guilty and assisted the prosecution by giving evidence against other defendants in court, the reduction in sentence should be in the range of 45% to 50%. See HKSAR v Chan Sau Hing and another CACC 211/2001. The one-third discount for guilty plea is already subsumed in such a reduction. See Secretary for Justice v Lee Chun Ho Jeef [2010] 1 HKLRD 84. The Applicant’s term of imprisonment was reduced from 2½ years to 16 months. This 14-month reduction translates to approximately 47% of the starting point of 2½ years, which falls within the applicable range of reduction. We did not think that the Applicant can be given an extra reduction in this regard.
王大律師另指，若扣除因申請人認罪而應得的 ⅓  (即10個月)刑期扣減，申請人因為主動向「力生」交出贓款及協助控方指證第二被告人所獲得的額外扣減只是四個月，這是明顯不足的。本庭不同意這說法。根據案例，若果申請人認罪及協助控方出庭作證指證其他被告人，刑期扣減幅度應該是 45至50%，見：HKSAR v Chan Sau Hing and another CACC 211/2001。這扣減幅度是已經包括 ⅓ 認罪的扣減，見：Secretary for Justice v Lee Chun Ho Jeef [2010] 1 HKLRD 84。申請人的刑期從 2½ 年扣減至 16 個月，這 14 個月的扣減，大約是量刑基準 2½ 年的 47%。這符合適用的扣減幅度。本庭不認為申請人在這方面可獲得額外的扣減。

Mr. Wong also complains that the offence came to light in December 2011 but it was not until March 2013 that the Applicant was first brought to court, and he had to wait a total of 20-odd months before he was sentenced on 29 August 2013. Mr. Wong submits that, for a case of theft in which the facts were relatively straightforward, the time spent awaiting trial can hardly be considered short. He argues that the Applicant should have been given an additional reduction. We agree with the Judge’s ruling that there had been no deliberate delay in prosecution. The Judge accepted the prosecution’s explanation that in 2012 the prosecution still had to carry out extensive investigations including going through CCTV footage spanning a number of months, going through a large quantity of computer transaction records, enquiring into the 2nd defendant’s bank accounts, seeking advice from the Department of Justice, etc. Once judicial proceedings have gone underway, the length of the wait for trial is not something completely within the prosecution’s control. We did not think that a further reduction in this regard is warranted.
王大律師亦指案件於 2011 年 12 月曝光，但申請人是到 2013 年 3 月才首次被帶上法庭。申請人是在 2013 年 8 月 29 日被判刑，他前後需要等待了 20 多個月。王大律師認為對於一件案情頗為簡單的偷竊案，這候審期是不可謂不長。他認為申請人應該獲得額外的扣減。本庭同意姚法官的裁決，控方沒有刻意拖延檢控。姚法官接納控方的解釋，在2012年間控方仍需要進行多方面的調查，包括翻查長愈多個月的閉路電視、電腦紀錄的大量買賣紀錄、查詢第二被告人的銀行帳戶及獲取律政司的意見等等。當案件進入司法程序後的候審時間並非控方可以完全控制。本庭不認為在這一方面應該給予進一步的扣減。

However, in our view, the Judge had failed to give the Applicant an appropriate reduction of sentence on account of his surrendering himself to the police and immediately returning the stolen money. In respect of the 2nd defendant, who was convicted after trial, the Judge reduced his sentence by 3 months to reflect his having made restitution of $430,000 of the stolen money to the police. In our judgment, the 47% reduction given to the Applicant reflects only his guilty plea and assistance to the police, and he should be given a further reduction of 4 months to reflect this mitigating factor. See HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Wong Mei Heung CACC 273/2010. Ms. Chiu, Senior Public Prosecutor for the Respondent has conceded that there is room for a downward adjustment to the sentence on that ground.
但本庭認為姚法官未有就申請人自首及即時交還贓款給予適當的扣減。雖然第二被告人是經審訊定罪，但姚法官仍然給予他三個月扣減，以反映他將 $430,000 的贓款歸還給警方。本庭認為申請人所獲得 47% 扣減只能反映他認罪及協助警方的因素，本庭認為他是應該再獲多四個月的扣減，以反映這個求情因素，見：HKSAR v. Leung Shuk Man [2002] 3 HKC 424 及 HKSAR v. Wong Mei Heung CACC 273/2010。代表答辯人的控方高級檢控官招秉茵同意就這點刑期有下調的空間。

Conclusion
總結

For the above reasons, we allow the application and, treating the hearing of the application as the appeal proper, we vary the sentence from 16 months’ imprisonment to 12 months’ imprisonment.
基於上述原因，本庭批准申請，視申請為正式上訴及將 16 個月監禁刑期更改為 12 個月。

Ms. Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官招秉茵代表。

Mr. Newman Wong, instructed by Messrs. Peter K.H. Wong & Co. and assigned by the Legal Aid Department, for the Applicant.
申請人：由法律援助署委派王吉顯律師行轉聘王興偉大律師代表。