黃健靈前女下屬減刑
【明報專訊】港大醫學院外科前女行政助理，利用職權虧空逾300萬元公帑，被判入獄1年10個月。女助理淪為階下囚後，獲廉政公署邀請出庭頂證其上司、即外科學系前主任黃健靈，黃終被裁定罪成，女助理昨獲上訴庭減刑4個月。被告陳秀紅（43歲）於2010年5月因公職人員行為失當罪被判囚22個月，今年1月轉當控方證人，出庭指證前上司黄健靈。陳於去年2月獲准保釋外出等候上訴，故至今未服完刑期。上訴庭法官認為，被告虧空公款逾300萬，行為嚴重違反誠信，法官判囚22個月是非常寬大，雖然被告協助指證黃，亦不能再大幅扣減刑期，決定減刑4個月，被告須返回監獄繼續服刑。
案情指出，被告於04至06年擅用醫學院轄下中心的信用卡，購物158萬元及透支144萬元，07年黃健靈得悉事件，但隱瞞事件「私了」，亦被控公職人員行為失當。(8/8/2012明報)
今天上載了香港特別行政區 訴 陳秀紅CACC252/2010 的判辭，被告獲減刑，完全是律政司高級檢控官曾藹琪的「功勞」。原審區域法院法官邱智立，寬大為懷，量刑以4年監禁為起點，最後減至22個月。為何會再減4個月呢？看一下判辭第11段怎樣講：
11. 原審法官判以22個月的刑期，其實已是寬大的處理。唯一要考慮的，就是應否就申請人其後對控方協助並出庭作證，再就刑期作適度調整。高級檢控官指出，原審法官以申請人的良好紀錄，再扣減4個月刑期，是不恰當的 (Secretary for Justice v Chau Wan Fun [2006] 3 HKLRD 577第15和16段) 。檢控官提出，即使是調整，適當的扣減，應不超過4個月，計算是以48個月做起點，扣除24個月作為協助控方和作證，再就還款減6個月，刑期是為18個月。
上訴庭認為原審法官刑期寬大，還考慮被告出庭指證黃健靈，協助控方這因素再酌量減刑，但那不是唯一的考慮。原審法官因被告認罪而扣減3分1刑期，已無需再因她過往紀錄良好而再減刑4個月。檢控官一方面批評原審法官做法不恰當，另一方面卻向上訴庭作減刑建議，自打嘴巴。正確引用周雲歡(Chau Wan Fun)案的原則，卻墮入辯方律師講法的框架，傻兮兮的作出讓步，否則上訴庭未必會減刑。22個月的刑期已十分寬大，不應再減。單看上面引用的這段判辭，已經可以看出檢控官思路不清，立場飄忽，終於做出錯誤建議。被告成功減刑，不應歸功於檢控官嗎？
*請參閱為高級檢控官曾藹琪平反 一文
I am not sure I can agree with your 「思路不清，立場飄忽」 comment at all. Properly understood, the prosecutor on appeal was simply saying the District Judge did not apply the correct sentencing principles, namely there should not have been a 4-month discount for previous clear record.
回覆刪除So, what do we have here? Based on the position at the time of sentence, the Defendant has not provided assistance to the Prosecution (at least not with any tangible result). As such, the judge correctly granted no additional discount on top of the usual one-third. With a starting point of 4 years, sentence should be reduced by one-third to 32 months. Added to that a reduction of 6 months for restitution, you have the ‘correct’ sentence of 26 months. I think the Court of Appeal said the judge was lenient/merciful to the defendant on this basis (22 months vs 26 months).
However, when the matter comes to appeal, it is a different matter. By then, the defendant has testified in the professor’s trial and her evidence was accepted by Court as truthful and instrumental to the conviction of the professor. As such, she is entitled to claim for a greater discount than one-third. You would of course be aware that the normal discount for an accomplice who has assisted the Prosecution is 50% (usual one-third included). Sentence should there be 24 months before any further reduction is taken into account. This is exactly what the Court of Appeal granted to the Defendant on appeal. The Court of Appeal, in correction of the Judge’s mistake, took away the 4 months’ discount for good character. The Defendant is still entitled to the 6 months’ discount for restitution. So we have 24 months minus 6 months i.e. 18 months. This sounds perfectly logical to me and I shall be grateful if you can enlighten me if I have got anything wrong.
傻兮兮的作出讓步?!
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I,
刪除I don't think I am able to enlighten anyone. The usual 1/3 reduction is a fallacy if it is applied as a matter of a straitjacket. Joseph Yau was lenient enough to pass a 22 months' sentence. 1/3 deduction was including the unblemished character consideration in Chau Wan Fun. The Public Prosecutor should argue that even the trial judge failed to consider the appellant had given evidence for the prosecution to secure the conviction of the other deft, we have to look at 1. the strength of evidence against the professor without the appellant testifying. 2. The strength of evidence against the appellant herself. Pleading guilty does not automatically get the reduction of 1/3.
What I don't like to see is the Public Prosecutor restricted her argument responding to the proposal of the appellant's counel. If the Prosecutor really tried to persuade the court to adopt Chau Wan Fun, she should draw the court's attention to para 25 instead of 15 and 16. Paras 15 and 16 in Chau Wan Fun are the stance of the prosecution instead of the consideration and discussion of Court of Appeal. The argument stands on the wrong footing.
As a matter of calculation, the prosecutor is of course correct mathematical wise. I would have thought when one represents the prosecution, one has to look at the leniency of the sentence itself. From time to time, we can see appellate court comment lower court of adopting wrong principles in sentence but in the end the appellate court takes a different course to arrive at the same result.
One more thing, CARR case is different from appellant applying for reduction of sentence. Application for Review cases normally take a lenient view when allowing the application by the prosecution because there is an increase in sentence. The appellant's application for reduction in sentence stands on a different platform. There is no such concession or consolation as a matter of principle.
I hope I make myself clearer.
I should summarize my argument as follows.
回覆刪除The Judge was certainly wrong in awarding an unjustified discount before the defendant testified for the prosecution but by the time of the appeal, the defendant has legitimately earned a bigger discount. Hence the overall reduction.
I really love to see comments from different perspectives. Writing is too dull without sparkle to ignite fire. Thank you.
刪除How much discount the deft should earn one has to see the entirety of the sentence. If the prosecutor argued differently, there might not be a reduction in the already manifestly inadequate sentence.
Very often I can see the absurdity in the calculation game. People (appellate court)tend to forget, in the end, whether the sentence is manifestly excessive. If not, why tamper with the sentence? The sentence should survive if it is only on the high side but I can see bits and pieces intervention. Is it really a rectification of wrong principle or only a show of superiority?
Bill,
回覆刪除Do tell us more about a number of propositions you quote. I am sure any prosecutor would like to be able to argue those points in Court.
(1) "The usual 1/3 reduction is a fallacy if it is applied as a matter of a straitjacket"
- I am quite surprised. I would think it is now firmly established in HK that there must be special reasons for withholding the 'usual' (or I should say now standard) one-third discount. See recent example of Hui Yee-lung CACC 406/2011. I would of course be glad to see cases where the Judge's decision to withhold a one-third discount upheld, in the absence of special reasons such as late plea or absconding. Even in cases that the defendant is caught red-handed, the Court of Appeal has repeatedly criticized trial judges for withholding one-third discount. This has been the case for the past 10-odd years. Do correct me if I am wrong and let us know how you can support your proposition with authorities. I am not saying the usual one-third discount (described as ‘high watermark’ in many cases) is sensible or flawless. Far from it. But the law is the law, until it’s changed. It’s now more or less a straitjacket.
(2) “We have to look at 1. the strength of evidence against the professor without the appellant testifying. 2. The strength of evidence against the appellant herself.”
- True that in cases where an accomplice’s evidence is not central to the conviction of another accomplice, a 50% discount may not be appropriate. A slightly smaller discount is warranted. In this case, the testimony of the applicant is clearly important to the conviction of the professor. Again, cases in recent years clearly show that provided that an accomplice comes up to proof at trial, a 50% discount would normally be granted. It does not matter whether the trial results in a conviction. A fortiori, from an accomplice’s perspective, why should I be entitled to a lesser discount simply because the evidence against my accomplice is strong. After all, the prosecution would not have used my evidence if their case is overwhelming. From cases I have read in the past, the Court of Appeal has been consistent in its approach.
You also said ‘the Public Prosecutor should argue that even the trial judge failed to consider the appellant had given evidence for the prosecution to secure the conviction of the other deft’. This is clearly not the case. At the time of sentence, she has not provided any statement to the ICAC. Of course, the Judge would not have granted him more than 1/3. At the same time, the Judge was not wrong in giving one-third. The only wrong decision was to knock 4 months off for good character.
Let me test your proposition with this. Let’s assume the appellant made no restitution, so the only mitigating factors would be (1) guilty plea and (2) assistance rendered subsequent to sentence. This modification should not affect the validity of our respective arguments.
Using the Judge’s original approach, the defendant would get one-third for pleading guilty and no more. The Judge would then give her another 4 months off for good character, which is of course wrong. In the end, her sentence should be 28 months. This is of course ‘lenient’ at the time sentence was passed.
After sentence is passed, she provided ICAC with her statement and in due course testified in Court, leading to the conviction of the professor. She now appeals to the Court of Appeal and asks for a topped-up discount (in accordance with the approach in HKSAR v. Y CACC230/2004 and many other cases) to 50%. For the reasons I quoted, there does not seem to be a valid reason to withhold such discount. So the sentence would be 24 months, which is less than the then ‘lenient’ sentence of 28 months. Are you saying a prosecutor can successfully argue that the Court of Appeal should not reduce the sentence any further? Again, I am sure prosecutors would all be happy to see how it can be done.
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As I see it, the sentence of the defendant is no doubt reduced. But this does not necessary mean defeat on the part of the prosecution. The judge's error was corrected. The defendant is stripped off the ill-gotten discount for good character. The Court then sentenced the defendant afresh based on the newly available information about the defendant's assistance and give him the discount he entitled (as opposed to discretionary). How is it unjust?
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I,
回覆刪除Sorry to have flared up your extreme interest in this case. There is a time lapse between HK and Sydney of 2 hours. That is the reason why I did not give a prompt response to your further comments. That said, I cannot give you an immediate reply to your further comments yet. I need to look up the cases. Everything comes from memory. It will take some time before I can respond.
我同意匿名君所說,檢控官冤枉了。(可能匿名君就是檢控官?)
回覆刪除I don’t think the prosecutor agreed to the discount of 4 months, it was just her fallback position that if the court was of the opinion that a discount was appropriate in the circumstances, it should be not over 4 months. I really can’t see how she 另一方面卻向上訴庭作減刑建議，自打嘴巴. It is not right to criticise the prosecutor for telling the court her fallback position , and in any event, the prosecutor succeeded as the CA did not give the 4m discount for the clear record eventually.
回覆刪除What the sentencing judge did was to give a starting point of 48m, reduce it to 32 months for pleading guilty, knock off 6m for restitution and 4m for clear record to reach a final decision of 22m. Given the assistance D gave to the authorities, CA decided as per case law to give 50% discount, thus reducing 48m to 24m, and knock off 6m for restitution to get 18m. I don’t see anything wrong at all.
You mentioned that people tend to forget in the end whether the sentence is manifestly excessive. Once D appealed against her sentence and gave evidence which the court accepted as the truth against another party, should she fail to get any extra discount (as per your conclusion) on the 22m?
L
Someone and L,
刪除Good to see your comments. I will write another blog to address them all.
Bill
Bill,
回覆刪除It's always nice to have a healthy exchange of ideas. We all become better advocates by testing/refining our own arguments. We now have our respective positions explained and argued. Whether we agree in the end doesn't really matter.
I was initially unhappy about your article because it came to a conclusion of incompetence way too readily. We now have a better understanding of the issues and principles. That is important.
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ps. I happen to be a man.
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刪除Sorry about the transgender error. I always trust my intuition about the gender when I see the language. I am wrong again. It matters not really. Seeing your very strong and prompt reaction about this blog, I give a deeper thought to what I have written. When the name of a person is mentioned in my criticism, I should be more careful not to wrong anyone. This not only prompted me to write the following 2 blogs, it also gave me a discomfort and displeasure feeling in case I mis-read the judgement. I started to search for more than 150 cases I could find involving Ms Olivia Tsang, SPP in the appeal cases. After reading them all, I will write another blog to give her a fairer comment.