In May of this year, we reported on the consideration by the Court of Appeal of the practice in sentencing whereby an applicant is afforded a full one-third discount from the starting point for sentence, if a plea of guilty is tendered at any time up to and until the first day of trial. On 2 September 2016, the Court of Appeal issued its decision in HKSAR v Ngo Van Nam (CACC 418 of 2014) and HKSAR v Abdou Maikido Abdoulkarim (CACC 327 of 2015). This decision radically changes sentencing practice so that the timing of the guilty plea plays a deciding role in the amount of discount to be applied.
Whilst the following principles remain the same for all cases:
- the court will retain an overriding discretion in sentencing; and
- the court will not have regard to the strength of the prosecution case in determining the discount to be afforded for a plea of guilty.
The value of a guilty plea is greater the earlier it is given.
Guilty Plea on First Day of Trial
For pleas of guilty made on the first day of trial, the appropriate discount is 20 percent from the starting point for sentence, rather than one-third. So for instance, if a Defendant is charged with drug trafficking and pleads guilty on the first day of his trial at the High Court, if the appropriate sentence for trafficking in that amount of narcotics would have been 18 years imprisonment after trial, instead of a sentence of imprisonment of 12 years following the guilty plea, a sentence of 14 years and 5 months would be imposed
Guilty Plea During Trial
For pleas of guilty made during the trial itself (after the first day of trial), the discount will usually be less than 20 percent. The actual discount will reflect the circumstances in which the plea was tendered. So in the example above if the Defendant changes his plea after losing a voir dire, his sentence is likely to be from 15 to 16 years imprisonment.
The Court of First Instance
For cases to be heard in the Court of First Instance: the stage to afford a full one-third discount from the starting point is at the committal in the Magistracy. If the indication to plead guilty is made after committal, up to the fixing of trial dates by the Listing Judge, the appropriate discount is 25 percent from the starting point. After trial dates have been fixed, but before the first day of trial, the appropriate discount for an indication of plea of guilty lies between 25 percent and 20 percent from the starting point. The judge will have regard to the time at which the indication was given and all other relevant circumstances.
The District Court
For cases transferred to the District Court: a full one-third discount from the starting point is to be afforded to defendants who indicate a guilty plea on the first or a subsequent Plea Day. Defendants who indicate a plea of guilty between the fixing of trial dates at the Plea Day and the first day of trial are to be afforded discount of between 25 percent and 20 percent from the starting point. The judge will have regard to the time at which the indication was given and all other relevant circumstances.
For cases in the Magistracies, the opportunity to secure a one-third discount from the starting point occurs when the defendant is asked to tender a plea to the charge; if trial dates are fixed that opportunity is lost. If the defendant indicates before the first day of trial that he wishes to plead guilty, the discount to be afforded lies between 25 percent and 20 percent of the starting point for sentence. The magistrate will have regard to the time at which the indication was given and all other relevant circumstances.
The revised practice only applies to a defendant who in future will reach the stages in criminal proceedings for which revised discounts are identified (eg, it applies to a defendant who is currently in the magistracy but will be committed or transferred for trial in the future). Defendants whose trial dates have already been fixed will benefit from the previous practice.
The revised practice should have a considerable impact on court lists, periods spent by Defendants on remand awaiting trial and the way criminal practitioners advise their clients. The decision on how to plead is always that of the Defendant. Yet many Defendants ask for advice on plea before they decide how to plead in court. Of this, Hon Lunn VP cited with approval Lord Justice Hughes in R v Caley (2013) 2 Cr App R (S) 305:
“… whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to insist on putting the Crown to proof at trial), he does not require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of conviction or acquittal, which is different.” (emphasis added)
Lunn VP also acknowledged that there are cases where a defendant genuinely does not know whether he is guilty or not and needs advice and/or sight of the evidence in order to decide.
For many Defendants awaiting trial in the High Court, their trial dates are more than a year away. As Macrae JA put it:
“This Court can well understand the frustration of the courts and those whose responsibility it is to list cases for trial when defendants prevaricate or change their minds and instructions about their pleas resulting in trials that are aborted and ensuing hearing dates that are rendered useless… One should not forget that when an 8-day trial in the High Court is aborted at short notice, not only is the time of the courts and witnesses wasted, but other defendants who are in custody patiently waiting for their own trials to take place are also disadvantaged, particularly so if ultimately they are acquitted”.
It is hoped that the Judgement of the Court of Appeal revising the general sentencing practice of affording a one-third discount on a guilty plea (and supported by all Justices of Appeal – not only those deciding this appeal) will reduce court waiting times following plea. It is also likely to result, however, in requests for more adjournments without plea in the courts of Principal Magistrates, the Committal court and Court 27 of the District Court whilst defence practitioners ensure that all prosecution materials are obtained before advice is given and a plea entered.