再為檢控官翻案

I am indebted to Miss I for the enlightening remarks she made through her informative comments on my shallow views in 檢控官的錯誤. I have indulged myself in looking up the law about defendant providing assistance to the authorities. Miss I asked me to read Hui Yee Lung and HKSAR v Y which are helpful enough to shed some light on the issue of reduction. I go further to lend the assistance of Z and HKSAR FACC9/2006 and will rely on the general principle canvassed in it to further advance my argument to resist the appellant's application for reduction of sentence in 陳秀紅.

I know it is difficult to argue against the norm of reduction of 1/3 for guilty plea and 50% for giving truthful and material evidence for the prosecution. Be that as it may, one cannot overlook a justifiable sentence  in the interest of the public. I would certainly rely on the general principle in this regard in Z and HKSAR. I will rely on the 2 paragraphs below, especially the sentence "But this is considered justified in the overall public interest" in para 11. I would reiterate the starting point of 4 years is wrong in principle. It should be 5 years in its stead. A 50% discount means 30 months' imprisonment. A further discount of 6 months for restitution is already very generous. So accepted, the sentence comes to 24 months.  It is still 2 months more than the original sentence of 22 months the trial judge passed. An over generous discount will defeat the public interest and is not considered justified. Therefore, the original sentence though inadequate should not be tampered. I would urge the Court of Appeal to take a different path and in the end dismiss the appeal.

10. The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention, detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society’s fight against crime. Criminals should be encouraged to inform on other criminals. Honour among thieves should be discouraged. Indeed, dishonour and betrayal among thieves should be encouraged.

11. The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence which would otherwise have been imposed is usually given for such assistance. This is a common approach in many jurisdictions. Its object is to provide an incentive for offenders to co-operate with the authorities. It encourages them to assist by giving information about the criminal activities of others, by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving a punishment which is less than that which his crime would otherwise have deserved. But this is considered justified in the overall public interest. The courts’ approach in this regard is a pragmatic one. (Z and HKSAR FACC9/2006 )