HKSAR v Kanjapanas & Ors

21 May 2009, Court of Appeal, Hong Kong

The court of appeal (Ma CJHC, Tang VP and Wright J) dismissed the application for leave to appeal against sentence and (Tang VP dissenting) increased the sentences of the 1st applicant (4 to 5 years) and the 3rd applicant (4 to 6 years). For background of the case, please see this ibk-lawyers article.

Ma CJHC pointed to the aggravating feature of the case including the attempted use of intimidation on the ICAC witness Becky Wong who was said to be 'fragile'.

In relation to the 3rd applicant, Ma CJHC said that the aggravating features were the facts that the 3rd applicant was a solicitor. The appeal judge said that he was "instrumental in initiating almost every aspect of the conspiracy" and "calling the shots behind the scenes" and that his involvement "was not an isolated event; it was persistent".

"As an officer of the court, a solicitor is expected, as the least of his duties to the court, to promote justice, not to pervert it. This is a substantial aggravating factor given the nature of the offence."

and

"It should be unnecessary to restate the fact that absolute integrity is required from a person in a position such as that of the 3rd Applicant, not perversion of the very system which he was duty-bound to uphold."

Tang VP, while agreeing that the application for leave to appeal should be dismissed, did not agreed that it was appropriate for the court of appeal to change the sentences handed down by the trial judge because the sentences do not

"…fall(s) outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate." per Lord Lane CJ in the Attorney-General’s Reference (No. 4 of 1989) 11 Cr App R (S) 517 at 521."

And that, referring to Cross and Cheung, Sentencing in Hong Kong (5th Edition) at page 36 :

"…A court of first instance is invariably best placed to assess the weight to be given to the various factors touching upon sentence."

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