Case Detail

IN THE COURT OF APPEAL

1995, No. 512(E)
(Criminal)

THE QUEEN

HO WAI-BIU,
LAM WAH-MAN and
SZE TING-WAH

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Coram : Power Atg CJ, Mortimer and Mayo, JJA

Date of Hearing : 20 November 1996

Date of Judgment : 12 June 1997

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court):

1. On 12 July 1995 after a lengthy trial the three applicants Ho Wai-biu (D1), Lam Wah-man (D2) and Sze Ting-wah (D3) were each convicted of conspiracy to rob before Deputy Judge Bokhary (as she then was) and a jury. Each was later sentenced to 9 years imprisonment. Each now applies for leave to appeal against his conviction and sentence.

The facts

2. This trial was the last of a series tried by this judge involving 9 accused and a number of armed robberies and conspiracies to rob. These applicants were charged and convicted of this one offence – a conspiracy in December 1993 with Ho Chun-wai to rob a house at No. 11, Tong Yan Sun Tsuen Road, Yuen Long.

3. The investigation began on 15 December 1993 with a police raid on a flat in Pau Chung Street, Tokwawan where guns and ammunition were found. Inside were six men including Chan Kwan-mau who gave evidence as an accomplice against the applicants. D1 was on the staircase outside the flat. He said that he was going to the flat to collect rent and was arrested. Later, his wife who was the tenant of the flat arrived. She also was arrested.

4. The investigations which followed revealed no evidence to implicate these applicants – or the 1st applicant’s wife – in the possession of the fire arms but the applicants admitted being parties to an agreement to rob the occupant of a house near Yuen Long specified in the indictment. The suggestion was that one of the applicants had knowledge of the house and the wealth of its occupant following a previous robbery and on 13 December the applicants and others agreed to carry out a further robbery there. Others were brought into the agreement and D1 approached Chan Kwan-mau to join. During the planning a visit was made to the house. Guns were to be used. In the event D1 and the others in the flat were arrested before the offence was carried out.

The evidence

5. The evidence against each applicant was principally his cautioned statement. Each described in some detail the agreement which had been made, the visit to the house and the way in which the robbery was agreed and planned. Additionally, Chan Kwan-mau gave evidence of D1 approaching him to join and circumstantial evidence of the whereabouts, movement and conversation between the three applicants and others supported the confessions of D2 and D3.

6. The judge rightly directed the jury that absent his confession statement none of the accused could be convicted. Each challenged the admissibility of his confession statement on the basis that it was made after assaults, threats and inducements.

7. Chan Kwan-mau gave evidence that he had been assaulted and scolded following his arrest by the same team of officers against whom D1 made similar allegations.

8. D1 and D3 called in support of their allegations of assault evidence that each of them had complained of assault when brought before the magistrate. Also, D1 called Doctor Noom who examined him on arrival at the Lai Chi Kok Reception Centre on 23 December 1993. D3 called Doctor Myint Thien from the Pik Uk Correctional Institution who examined D3, also on 23 December 1993. Each doctor gave evidence of complaints and relatively minor bruising together with a small abrasion in D3’s case.

9. D1’s wife was arrested after she arrived at the Pau Chung Street flat. She was held from 15 December until 17 December. D1 complained that the police obtained his confession by suggesting that if he did not co-operate, she would be charged; and if he did co-operate, she would be released to look after their children. Counsel suggested that she was held for those two days in order to obtain D1’s co-operation.

The applications of D1 and D3 on conviction

10. Mr Michael Gerber (Mr Dickson Li with him) submits that the judge ought not to have admitted into evidence the confession statements. He makes a number of points in support. He suggests that the judge did not give sufficient consideration to the various matters advanced – in particular in D1’s case the detention of his wife. In the case of both, the medical evidence called in support of the assaults and the evidence of Chan Kwan-mau concerning his treatment. This was shown, he says, by the failure of the judge to give reasons when admitting the statements and when she was asked later to reconsider her ruling.

11. These matters can be dealt with briefly. As has been said on many previous occasions – it is now firmly settled law and practice – that in making a ruling upon the admissibility of confession statements after a voir dire, it is not incumbent upon a judge to give reasons for his ruling. Further, this Court will not criticise a judge for not giving his reasons. The same rule applies when a judge is invited to reconsider his ruling in the light of evidence which emerges in the course of a trial.

12. All the matters raised before this Court were the subject of evidence and careful submissions to the judge at the hearing. Far from overlooking any of the matters put before her, there is every indication that the judge carefully considered them.

13. Both these applicants complain of a passage in the summing up in which the judge gives strong directions about a submission made to the jury by Mr Kelly acting for D3. It is necessary to set out the whole passage for it to be understood:

“In his final speech, Mr Kelly for the 3rd accused said that whenever there is evidence of injuries, the prosecution has a positive duty to prove that those injuries were not sustained as the result of police assault. If by that Mr Kelly meant what I have just been telling you. Then of course he is right.

The prosecution must prove beyond reasonable doubt that the confessions which it relies upon were made and are true. That is exactly what the prosecution says it has done in this case: on the evidence of the officers concerned, whose evidence you are entitled to accept if you see fit. But none of that means that the prosecution must prove that the injuries found on any accused could not have been caused by the sort of assault which he alleges. That is not the law. Nor is it common sense.

If that were the law, then you would end up with a situation like this. A man commits a crime. Then he is arrested by the police. Thinking that the police know about all of it anyway, he makes a true confession to that crime. Later, he comes to realise that he could have gotten away with it if only he had kept quiet. So he retracts his confession, and alleges that the police had beaten it out of him. Then he inflicts some self-injury of the kind which would be produced by the sort of assault which he alleges against the police.

So just like that he would have made it impossible for the prosecution to rely on his true confession. And, guilty though he is, he walks free. Plainly, that is not common sense. And, as I have directed you, it is simply not the law.”

It is submitted that the prejudicial effect of this passage was such that the jury ignored the medical evidence supporting the evidence of both D1 and D3.

14. Undoubtedly this was a strong direction but there are occasions after counsel makes a submission to the jury which is wrong in law and misleading that a strong direction is required. Such a direction was required in this case. It was powerful but it was correct in law and cannot be said in these circumstances to be either prejudicial or unfair.

15. Mr Gerber then submits that the judge’s direction to the jury did not make it clear that a mere intention or plan to commit the offence was insufficient to establish a conspiracy. With respect, this is not borne out by an examination of all the directions which were given. For example, the judge began by telling the jury what in law was meant by conspiracy:

“To perform your duty in this case, what you need to know is that an agreement between two or more persons to commit a crime amounts to a conspiracy.”

She continued to explain:

“As you know, the robbery which it is charged that the accused had conspired to commit never took place. That does not matter. What matters is whether there was the agreement. The offence is the agreement. Of course, mere knowledge on the part of an accused that a robbery was being planned is not enough. Nor is a mere intention or desire that robbery be committed. For an accused to be guilty, he must have agreed with one or more of the persons named as a conspirator in the count to commit the robbery mentioned in the count.”

Later, dealing with the position of a person who joins a conspiracy already made between others, she explained:

“If he joins later on intending to carry out the same crime, combining with the others, then he becomes a conspirator from that moment.”

In the view of this Court, these directions were both clear and correct.

16. The final point made by Mr Gerber – with which it is necessary to deal – is the comment made by the judge about the cautioned statements made by these two applicants. She said at p39A–L:

“The officers concerned readily accepted that they had not cautioned the 1st or 3rd accused in respect of conspiracy.

You may take that into account as you see fit. But do remember that the 1st and 3rd accused’s allegations are not that they admitted conspiracy because, not having been cautioned in respect of it, they did not appreciate that they did not have to do so. Rather, their allegations are of improper means being used to get written statements from them. So you may think that the absence of cautions here do not matter.

You will remember that you are not here to judge police procedure, and that what you are here for is to try this case as a tribunal of fact, doing your duty as such.”

The particular phrase with which Mr Gerber takes exception is:

“that the absence of cautions here do not matter”.

Taken in isolation it is not possible to support a direction that a caution to an accused person does not matter. Here, however, the judge was directing the jury on the relevance of the absence of caution to the applicants’ confessions. The judge was right to say that the real issue in the case was whether the confessions had been made voluntarily and therefore could be given weight. Neither applicant complained that he confessed because he had not been given a caution. Properly regarded therefore there is nothing in this point even if there could have been a happier choice of words.

The application of D2 on conviction

17. D2 appears in person. He first complains that part of his cautioned statements were blanked out and this caused unfairness to him. On the contrary, this was done on counsel’s application in order to achieve a fair trial. There is nothing in the point.

18. Similarly, he submits that the judge ought to have replaced the jury because some jurors were dozing. Nothing has been identified in this respect which could possibly form an arguable ground of appeal.

19. Next, he submits that his statements ought to have been excluded from evidence on the grounds of duress and inducement. These matters were considered by the judge and ruled upon and were fully in front of the jury for their consideration.

20. There is no substance in any point he raises.

Conclusion

21. For the reasons we have set out above, the applications on leave to appeal against the convictions are refused.

The applications on sentence

22. The three applicants each contends that the sentence passed upon him was manifestly excessive having regard to all the circumstances and in particular that this agreed and planned robbery was never carried out. Additionally, D3 relies upon his age – only 19 at the time of the offence – and D2 seeks to rely upon the assistance which he had given to the police in the past and the cooperation about this offence after he was arrested.

23. The judge refused to draw any distinction between the respective roles of each of the applicants. The robbery was serious. She described it as follows.

“The robbery which you conspired to commit was a well-planned one. The premises were reconnoitered. You were after a large sum of money. The execution of the planned robbery was to be ruthless and it involved a number of men. It involved domestic premises; and it involved entering such premises to commit robbery, not just burglary, but robbery.”

24. On the evidence, D2’s activity as a police informer was not something upon which he could seek to rely. A police officer was asked about the matter and he said that during 1993, the police no longer had any contact with this applicant and the information which he had previously given was shown to be incorrect when the police checked it.

25. Having fought the case, the assistance given to the police about the present offence was not a matter upon which he could seriously rely.

26. The consequence is that 9 years imprisonment after trial for this serious offence was neither wrong in principle nor manifestly excessive. D3’s sentence was made partially consecutive with an earlier sentence of 6 years passed upon him for three counts of robbery, one count of false imprisonment and one of taking a conveyance without authority. It cannot be said that the total sentence passed was itself wrong in principle or manifestly excessive. In these circumstances, the applications for leave to appeal against sentence are refused.

(N.P. Power)
Atg Chief Justice

(Barry Mortimer)
Justice of Appeal

(Simon Mayo)
Justice of Appeal

Mr J. Michael Gerber and Mr Dickson Li (M/s Augustine C.Y. Tong & Co) for 1st Applicant (conviction & sentence out of time)

2nd Applicant, Lam Wah Man, in person (conviction & sentence)

Mr J. Michael Gerber & Mr Dickson Li (M/s Augustine C.Y. Tong & Co) for 3rd Applicant (conviction & sentence)

Mr I.G. Cross, QC and Mr F. Veltro (Crown Prosecutor) for Crown/Respondent

IN THE COURT OF APPEAL

1995, No. 512(C)
(Criminal)

THE QUEEN

WONG KIT-WING,
TSUI KA-WING and
TANG YUK-MING

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Coram :Power Atg CJ, Mortimer and Mayo JJA in Court

Date of Hearing : 20 November 1996

Date of Judgment : 12 June 1997

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court) :

1. On 17 May 1995 each applicant was convicted of offences before Deputy Judge Bokhary (as she then was) and a jury. Wong Kit-wing (D1), Tsui Ka-wing (D2) and Tang Yuk-ming (D3) were each convicted of a joint offence of possession of arms and ammunition with intent and one conspiracy to rob. D1 and D3 were also convicted of two further joint conspiracy to rob.

2. On 14 July 1995 D1 and D3 were each sentenced to a total of 15 years imprisonment and D2 was sentenced to a total of 10 years imprisonment. Each seeks leave to appeal against both conviction and sentence.

The facts

3. The trial of these applicants was one of a series tried by Deputy Judge Bokhary involving nine accused in all. This was the consequence of a police raid on a flat in Pau Cheung Street, Tokwawan. Inside the flat the police found three hand guns and a quantity of ammunition in an open drawer. There were six men in the flat including the three applicants and Chan Kwan-mau who pleaded guilty to the above offences and others and gave accomplice evidence at the trial against the applicants.

4. Count 2 concerned a conspiracy to rob Lee Kwong-yim, the owner of a majong school. Chan described planning of the robbery in the flat followed by armed expeditions to carry it out which were later abandoned for various reasons. Chan implicated each applicant in this conspiracy and each confessed to it in voluntary statements.

5. Count 3 in the indictment alleged a joint conspiracy to rob the Chow Sang Sang Jewelry Shop and count 4, a joint conspiracy to rob the Kwong Shing Goldsmith Company. Chan gave evidence implicating D1 and D3 in these two offences and they both admitted complicity in confession statements. Chan’s evidence was that a group including D1 and D3 armed with guns went to the Chow Sang Sang Jewelry Shop to rob it but abandoned the plan when they found police officers patrolling the area. It was decided that a smaller shop should be chosen. This led to a plan to rob the Kwong Shing Goldsmith Jewelry Company (count 4). An armed group from the flat, including D1 and D3, went to this shop in order to rob but again found police officers patrolling the area and abandoned the plan.

D2’s application on conviction

6. It is convenient to consider D2’s application first because he was represented at the hearing by Mr Andrew Raffell.

7. At p.12B–D the judge directed the jury that:

“On the whole of the evidence you are entitled to find that each accused knew of the arms and ammunition in the flat, and had a fixed intention to commit in the immediate future a robbery as a member of a gang of armed robbers, some of whom would carry these arms and ammunition for the whole gang’s common purpose of committing an armed robbery.”

Mr Raffell submits that the effect of this direction was to withdraw from the jury’s consideration D2’s defence to count 1 and the issue whether his client knew of and was in joint possession of the arms and ammunition in the flat.

8. This submission is untenable in the light of Chan’s evidence and D2’s confession which recounted that arms and ammunition were left in the flat to be used by any occupant for the purposes of armed robbery; that D2 had stayed in the flat for a week in the flat before his arrest; that he had been out with the intention of committing the robbery in count 2 with others who were armed; and finally that he had handled one of the guns in the flat. In other parts of her summing-up the judge reminded the jury of D2’s evidence denying knowledge of the arms and ammunition and any intention at any time to use them. There is no substance in the point.

9. In ground 2 of this applicant’s notice, it is conceded that at p.42I-43C the judge directed the jury properly upon their approach to confession statements alleged to have been obtained by force. In spite of this, it is suggested that there were inadequate directions elsewhere in the summing-up, that excessive emphasis was placed upon the evidential value of the confessions and insufficient emphasis upon the applicant’s case that the confessions were fabricated and obtained under duress.

10. These submissions have no foundation. The judge’s summing-up must be considered as a whole. When it is so read, the jury can have been in no doubt as to the proper approach to these confessions. Nor were the judge’s directions concerning the applicant’s defence in any way unfair or misleading. No arguable point is raised on this ground.

11. Mr Raffell’s next submissions are equally without foundation. At p. 60C–H when reminding the jury of the contents of D2’s confession statement, the judge said:

“Incidentally there is on p.5 a list of an error which you may consider of no real importance at all. Following references to Saturday, Sunday and Monday respectively, are references in brackets to the 15th, 16th, and 17th of December. This should be – one would find if one were to look at a 1993 calendar – the 11th, 12th and 13th respectively. There may be similar errors elsewhere; and you may consider any such other errors to be equally unimportant.”

Mr Raffell submits that by describing the errors as “of no real importance”, the judge was dismissing what could have been an important issue for the jury. It is difficult to imagine how this obvious error could be an important issue. Nor were the exact dates of these events material to any defence advanced.

12. It was a sensible direction inviting the jury not to waste time on trivia.

13. Finally, in ground 5 Mr Raffell submits that the verdicts of guilty against this applicant were so inconsistent with the verdicts of not guilty on counts 3 and 4 that “no reasonable jury who have applied their mind properly to the facts of the case could have had arrived at the conclusion”. Again, this submission does not stand even superficial analysis. In his confession statements, he clearly admits guilt of count 2 and facts from which guilt of count 1 can be inferred. Further, the witness Chan Kwan-mau implicated him in these two offences.

14. The evidence on counts 3 and 4 in his confession statement was less cogent. The jury could have concluded that this applicant was involved in some of the planning and preparation for the offences of which he was acquitted without having finally agreed with the others to commit them. He was after all only 19 years of age and his elder brother was one of the other conspirators. The real distinction between the counts on which this applicant was convicted and those upon which he was acquitted, however, is to be found in the evidence of Chan. He clearly implicated him in counts 1 and 2 but exonerated him on the other counts.

15. For these reasons, we dismiss this applicant’s application for leave to appeal against conviction.

D1’s application on conviction

16. D1 appears on this application in person. He seeks to argue a number of discrete points.

17. First, he submits that he and those advising him had insufficient time at trial to prepare his defence in relation to the evidence of Chan Kwan-mau. He submits that the statements were served upon him at the trial and the judge refused an application for an adjournment for further preparation. The timetable at trial, however, shows that there is nothing in this complaint. Counsel for the Crown opened the case on 10 April 1995. Chan’s statements had been served before the trial and Chan was not called to give evidence until 2 May.

18. His second point is that his keys were produced as an exhibit at trial bearing a label on the reverse side on which were his name and the address where the guns were found. He submits that this was highly prejudicial to him. The transcript shows that the keys with the applicant’s name on the back of the exhibit label were produced. It was not certain that the jury had seen his name on the back of the label. Counsel for this applicant raised the point with the judge in the absence of the jury and she ordered that the applicant’s name and other details be covered over. In case the jury had noticed his name – which seems to have been unlikely – the judge warned the jury in these terms:

“I do not know whether you have the opportunity to look at them at all, but if you did look at the back of the label, I direct you that you must completely ignore that information as contained on the back of the label because that is simply not evidence, and please put that out of your mind. If you haven’t looked at that, that is fine; but if you have, just completely ignore the information. Do you understand?

Jury: Yes.”

The judge dealt with this matter impeccably and there is nothing in the point.

19. Thirdly, this applicant contends that a police officer told the jury that the applicant was arrested in a “target flat”, that he was a “target” and that he had a criminal record. On this ground, he says, his counsel asked for the jury to be discharged but the judge unfairly refused the application.

20. Again, the transcript demonstrates that the point is groundless. In chief, the officer described a photograph of the flat as of “the target unit”, but under cross-examination he explained that he was not keeping a special watch on the premises. Counsel left the matter there. It was insignificant and never referred to again.

21. As to the applicant’s criminal record, an arresting officer explained that he had checked with the Identification Bureau about the criminal records of those arrested. He did not go on to say that any had a record, but the matter was raised by counsel who applied for the jury to be discharged. So far as this applicant is concerned, the particular concern was that D2 was of good character and intended to put his character before the jury which could lead the jury to assume that the other two had a bad character. The judge considered the submissions and ruled that the jury should not be discharged, adding:

“Perhaps counsel for the 1st and 3rd accused will ultimately take the view that the least said the better, but if after they have had time to think it through there is any particular direction which they, or either of them, would like me to give to the jury in due course, I would, of course, listen to recommendations on the point.”

22. Decisions whether it is necessary to discharge a jury are uniquely in the discretion of the trial judge and only in very rare circumstances will the Court of Appeal interfere with its exercise. There are no grounds for interfering with the judge’s ruling especially as no further submission was made by counsel for D1. Indeed, D1 gave evidence that he was in the flat in Pau Cheung Street because he had jumped bail for an offence on which he was later tried and acquitted. It was clearly agreed by counsel that the matter should be left there. There is nothing in this ground and for the reasons that we have set out, this application by D1 is refused.

D3’s application on conviction

23. D3 also seeks to argue that the judge ought to have discharged the jury. We reject this ground for the reasons given. He also submits that the summing-up was biased against him in favour of the Crown and that the judge said nothing about the presumption of innocence when reminding the jury that they could convict on his confession statements. There is no support on the record for either of these submissions and his application is refused.

The applications for leave to appeal against sentence

24. The judge sentenced the applicants after all nine accused involved in the series of robberies and the possession of arms and ammunition in the Pau Cheung Street flat had either pleaded guilty or been convicted after trial. The sentences passed on these applicants were as follows: D1 was sentenced on count 1 to 5 years imprisonment, on counts 2, 3 and 4 to 14 years imprisonment concurrent with each other, but 1 year consecutive to count 1, making 15 years in all.

25. D2 on count 1 was sentenced to 4 years imprisonment, on count 2 to 9 years imprisonment with 1 year consecutive, making 10 years in all.

26. D3 was sentenced on count 1 to 5 years imprisonment, on counts 2, 3 and 4 to 14 years imprisonment concurrent with each other but 1 year was made consecutive to count 1, making 15 years in all.

27. D1 and D2 appears in persons. D3, having initiated applied for leave to appeal against his sentence, has abandoned his application. So far as D1 and D2 are concerned, each contends that the sentence passed him is manifestly excessive. In addition, D1 submits that a higher sentence was passed upon him than was passed upon D2 and that therefore his sentence was wrong in principle. D2 contends that his role was a much lesser one than the others, that he now has a baby daughter whom he wishes to look after and that in prison, he is now undergoing education and has been very successful. He advances these matters to support his application on sentence.

28. So far as D2 is concerned, he was only 18 at the time of the offences with only one relatively minor previous conviction. D1, however, could not rely upon his good character.

29. Having regard to the evidence and the jury’s verdict, the judge did take into account that D2’s involvement in this matter was less than the others and it was on this basis that she passed reduced sentences on him. Undoubtedly, the sentences passed on both D1 and D2 were substantial. However, the whole circumstances here demonstrated careful planning, the provision of guns and the determination to carry out robbery using those guns. As the judge said:

“The danger to the public is obvious.”

The sentences were heavy but the judge took into account in reaching those sentences everything that she ought to have taken into account. The sentences were entirely justified by the nature of the offences which had been committed and the circumstances in which they were committed.

30. The applications are refused.

(N.P. Power)
Atg Chief Justice

(Barry Mortimer)
Justice of Appeal

(Simon Mayo)
Justice of Appeal

1st Applicant in person (conviction and sentence)

Mr A. Raffell (DLA) for 2nd Applicant (conviction)

2nd Applicant in person (sentence)

3rd Applicant in person (conviction and sentence)

Mr I.G. Cross QC and Mr F. Veltro (Crown Prosecutor) for Crown/Respondent

IN THE COURT OF APPEAL

1995, No.512D
(Criminal)

BETWEEN

THE QUEEN

and

TSUI KA CHEUNG

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Coram : Hon Yang CJ, Mortimer JA and Keith J

Date of Hearing : 25 April 1996

Date of Judgment : 25 April 1996

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the court.

2. The applicant acting in person sought to appeal against his conviction but abandoned this application before us this morning.

3. Mr Raffell, acting on behalf of the applicant in respect of the application for leave to appeal against sentence, argues that the totality of sentence of 28 years imposed in this case is manifestly excessive.

4. The applicant was convicted after trial of one count of possession of three pistols and rounds of ammunition (Count 1) in a Pau Cheung Street flat, and there was evidence to show that it was he and another culprit who brought the arms and ammunition into Hong Kong from China for the purpose of committing robberies.

5. He was also convicted after trial of three counts of robbery. First, a robbery at S and Happy Jewellery Limited where two men declared robbery with a gun and quantities of jewellery were stolen. Secondly, at another robbery at Dor Dor Fastfood Shop, $3,000 cash was taken and there was an exchange of fire between the culprits and policemen. It was not known which of the culprits fired the shots. Thirdly, there was the robbery in the Sea Hill Jewellery Shop where a warning shot was fired at the ceiling. Again, it was not known who fired the shots.

6. Lastly, he was convicted after trial of five counts of conspiracy to rob. According to his own confession statements, the conspirators planned to commit a number of robberies in various goldsmith shops with the use of firearms.

7. The judge imposed a sentence of 10 years on Count 1. She then imposed concurrent sentences of 17 years on each of the conspiracy counts. Similarly concurrent sentences of 18 years on each of the robbery counts were passed. Adding the 10 years for the arms and ammunition count to the 17 years for the conspiracy counts and 18 years for the robbery counts, the total would come to 45 years which was obviously too high. Taking into consideration the totality principle, she ordered that 7 years of the 10 years on the first count be served concurrently with the counts of robbery. She ordered the 18 years for the robbery counts to start after the completion of three years of the 10 years of the arms and ammunition counts, and the 17 years for the conspiracy counts to commence after the completion of eight years of the 18 years for the robbery counts, thereby arriving at a total of 28 years.

8. Taking into consideration the fact that the pistols and ammunition were bought in by this applicant and his co-conspirator into Hong Kong for the purpose of committing robbery and that firearms were in fact used during the robberies though no-one was injured, and further that these offences were committed over a fairly lengthy period of time, we are of the view that whilst the 28 years imposed upon the applicant was on the high side, it was nevertheless within the acceptable range of sentences.

9. For these reasons, we refuse the application.

( T L Yang )
Chief Justice

( J B Mortimer )
Justice of Appeal

( Brian Keith )
Judge of the High Court

Mr A J Raffell (DLA) for Applicant (on sentence)

Mr I G Cross QC and Ms M A Crabtree of the Attorney General's Chambers for Crown/Respondent

IN THE COURT OF APPEAL

1995, No.512A
(Criminal)

BETWEEN

	THE QUEEN
	and
	CHAN KWAN MAU

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Coram : Hon Yang CJ, Mortimer JA and Keith J

Date of Hearing : 25 April 1996

Date of Judgment : 25 April 1996

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the court.

2. The applicant, Chan Kwan Mau, seeks leave to appeal against his sentences, the totality of which is 13 years. The judge, in assessing sentences for the applicant, adopted a starting point of 27 years. Taking into consideration the fact that he pleaded guilty and that he had given assistance to the prosecution, she reduced the sentence to 13 years.

3. The gist of the grounds of appeal are that the discount given by the trial judge was not sufficiently generous to reflect the assistance the applicant gave to the prosecution. He gave evidence against seven men in a number of robbery cases, or cases related to robbery, at some serious risk to himself.

4. It is common ground between the applicant and the prosecution that he falls within a category which is generally described as "supergrass". It is not necessary for us in this case to reiterate the meaning of the term "supergrass", suffice it to say that we agree with what Power VP said in this regard in the case of R v. Chiu Pak Wing [1995] 2 HKC 819.

5. It is also common ground between the applicant and the prosecution that in the case of a supergrass, up to a two-thirds discount is usually given.

6. In this case, the applicant pleaded guilty to Count 1 which was having arms and ammunition with intent to commit an arrestable offence. Three loaded pistols and 17 rounds of loose ammunition were found in his flat at Pau Cheung Street. He admitted that he brought these items from China to Hong Kong to be used in robberies. He also pleaded guilty to three counts of robbery, namely, Counts 3, 7 and 9. These referred to a robbery in a jewellery shop where gold ornaments were stolen, a robbery in a restaurant where cash and a watch were stolen, and a robbery in another jewellery shop where further gold ornaments were stolen.

7. Pleas of guilty were also entered in respect of three other counts which paired with the three robbery counts respectively - these other counts were possession of a firearm or imitation firearm at the time of committing those robberies.

8. Lastly, he pleaded guilty to three counts of conspiracy to rob which related to plans to rob three goldsmith shops, namely, the Moon Kee Goldsmith Company, the Chow Sang Sang Jewellery Shop and the Kwong Shing Goldsmith Company.

9. For the possession of arms and ammunition count, the trial judge adopted a starting point of 10 years, for the three robbery counts she adopted a starting point of 18 years, for the possession of arms at the time of committing a robbery a starting point of 5 years, and for the conspiracy to rob counts a starting point of 14 years. Some of the sentences were ordered to run concurrently, and she arrived at a totality of 42 years for those counts which she reduced to 27 years as a starting point.

10. The robberies were committed with little violence except that a pistol was displayed and in another case a screwdriver was also displayed. No person was injured. One shot was fired at the scene.

11. Counsel acting for the applicant in the court below in his plea in mitigation suggested that the applicant was a supergrass and therefore a discount of something between 33% to 50% would be appropriate. It would appear from the authorities, we have already said, that for an accused who had pleaded guilty, who falls within the category of a supergrass, a discount up to two-thirds would be appropriate. The difficulty of arriving at the proper discount is discussed in the case of R. v. Sivan and others (1988) 10 Cr App R (S) 282. The Lord Chief Justice, at pages 286-287 said:

"As has already been indicated when considering the sentences imposed upon the other three, it is now a well established feature of sentencing practice that credit should be given to a defendant in certain circumstances for assistance or information which he has given to the authorities. There is no need to cite cases in respect of that. The cases are legion. It is an area which is fraught with difficulties, as anybody who has practised in this field at the Bar or who has had to decide this type of case, either at trial or on appeal, will know all too well.

First of all it is by no means easy to discover the true facts. Secondly, the defendant himself will not be anxious for his mitigating activities to be aired in public. Indeed, if he thinks there is any danger of publicity attending his efforts he is unlikely to provide the information which he may have available to be provided. That also means that any information which he does impart often has to be conveyed to the court in writing, and sometimes in the privacy of the judge's room. That means, regrettably but unavoidably, there is likely to be a lack of the openness which ought to characterise all aspects of the criminal trial.

Thirdly, it is not easy for the judge to determine exactly to what extent credit should be given for the information provided. Amongst matters to which he will pay regard are the following: the nature and effect of the information imparted - did it relate to trivial or serious offences? Was the information successful, bringing to justice persons who would not otherwise have been brought to justice, because that is one of the ways, as was pointed out in argument, of testing the veracity and accuracy of the information which has been given? Next, the degree of assistance which has been provided: was the defendant, for example, prepared, as Greenfield was prepared in this case, to give evidence if necessary in order to bring home the information which he had provided and to assist in the conviction of an offender? Also, again as illustrated in this case, the judge must take into account the degree of risk to which the defendant has, by his actions, exposed himself and his family.

Within those limits, necessarily very broadly, the judge must bring himself to tailor the sentence so as to punish the defendant, but at the same time reward him as far as possible for the help he has given and - this is as important as anything else - in order to demonstrate to offenders that it is worth their while to disclose the criminal activities of others for the benefit of law-abiding public in general."

12. Taking all the circumstances into consideration, we consider that the assistance given by the applicant was not reflected sufficiently in the discount given. For these reasons, we allow the application, treat the hearing of the application as the hearing of the appeal, allow the appeal and reduce the totality of the sentence from 13 years to one of 9 years.

13. Those sentences imposed by the trial judge which went beyond 9 years are therefore reduced to 9 years and all the sentences are to run concurrently.

( T L Yang )
Chief Justice

( J B Mortimer )
Justice of Appeal

( Brian Keith )
Judge of the High Court

Mr A C Macrae (C K Tse & Co) for Applicant

Mr I G Cross QC and Ms M A Crabtree of the Attorney General's Chambers for Crown/Respondent

THE QUEEN v. TSUI KA CHEUNG

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