This recent case laid down the principles on what a defendant should do in order to secure an appropriate discount for early pleas to lesser offences or alternative charges.
The Appellant was committed to the High Court for trial in respect of a single count of rape. The trial was originally fixed for 13 days. Before committal proceedings, there were three approaches from the Appellant’s solicitor to the prosecution offering a plea to an alternative charge to rape. The prosecution rejected all approaches. All of the correspondence was between the parties without a formal record in court. On the day originally scheduled to have been the fourth day of trial, the judge was apprised of a possible plea-bargain and the Appellant pleaded guilty to an amended indictment with the alternative charge of procurement of an unlawful sexual act by threat. The trial judge adopted a starting point of 6 1/2 years’ imprisonment and reduced it by just over 20% for the Appellant’s late plea. The Appellant then sought to appeal against his sentence on the ground that he had been wrongly deprived of the full one-third discount for his guilty plea.
On appeal, the issue was this: in the situation where a defendant has previously offered to the prosecution to plead guilty to a lesser or alternative charge, which was then rejected by the prosecution and was later convicted on that lesser or alternative charge, or the plea was later accepted by the prosecution, what is a defendant expected to do in order to obtain an appropriate discount for that earlier offer of a guilty plea. The Court noted that the utilitarian value of a guilty plea is in the public interest. The High Court of Australia decision of Cameron v R was cited in explaining a guilty plea “saves the community the cost and inconvenience of the trial”, including costs for the judiciary, prosecution, supply of legal aid, fees paid, any witnesses or jurors summoned, and specifically in murder and sexual offences, the pressure faced by the victim or the victim’s family and friends in preparing to give evidence. The Court of Appeal then considered the position in other jurisdictions. The position in England and Wales was not applicable to Hong Kong as it is governed by a statutory regime. In giving the judgement of the Court, Macrae VP cited with approval the Scottish case of Spence v HM Advocate (2008) JC 174, which states that in order to secure a discount for an early plea “an unequivocal indication of the position of the offender” is required, and “that intention must be adhered to throughout the proceedings and be appropriately vouched”. The Court also noted the position in Australia might seem more amenable to formal written offers to plead guilty. However it was emphasized that such offers must be clear and unequivocal, and the court should be persuaded that there was a good reason for the plea not being formally entered on the court record. The defendant’s conduct in the proceedings thereafter should also be entirely consistent with the proposed offer.
Application to the present case
Applying these principles, the Court of Appeal held that there was a formal written offer to plead guilty. However, the Appellant did not enter such plea when he could and should have done so. The Court considered that in the current case, the fact that the plea-bargaining was not known until the trial began reduced its utilitarian value. By that time, considerable time and effort by both parties, the prosecution witnesses and the Court to prepare the trial had already been wasted.
Further, the Appellant’s subsequent conduct of instructing his counsel to contest the issue of consent and the credibility of victim was inconsistent with his plea. The utilitarian value of the offer was therefore significantly reduced and he was only entitled to a 25% discount for his plea.
Principles laid down for Hong Kong
In conclusion, the Court of Appeal laid down the following principles to supplement those in Ngo Van Nam regarding early pleas of guilty to lesser offences or alternative charges offered by a defendant, which pleas either match the eventual verdict of the jury or are later accepted by the prosecution:
- The defendant should make a clear and unequivocal statement of his position either by himself or through his legal representative, in court and on the record of his wish to plead guilty to a lesser or alternative charge by formally entering a plea to the proposed charge on the court record.
- The conduct of the defence must adhere to his stated position for the remainder of the proceedings in order to be assessed for the appropriate sentencing account as a result of the earlier offer of plea.
- Clear and unequivocal offers of pleas in formal writing may still be considered if the court can be satisfied that there was good reason for the plea not being formally entered on the court record. The onus will be upon the defendant seeking the discount to show that the offer of plea was in clear and unequivocal terms and the basis for the plea; and such position had been adhered to for the remainder of the proceedings.
The extent of the discount will depend on the stage at which the proposed plea is clearly and unequivocally entered on the court record, subject to the overriding discretion of the judge and the principles set out in Ngo Van Nam.
Note: At the appeal hearing, the Court of Appeal expressed the provisional view that the trial judge’s starting point was wholly inadequate, and that a notional sentence after trial of 8 years’ imprisonment would be the correct enhanced starting point. In other words, if the Appellant was found to be entitled to a one-third discount, the resulting sentence would have been higher than the one he was currently serving. If this view was adopted, the Appellant’s appeal would be redundant. In the face of these judicial comments, the Appellant withdrew his appeal against sentence.
Morley Chow Seto