Attorney General v. Chan Fat Keung

CAAR000020/1987

BETWEEN

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Coram: Hon. Yang, V.-P., Barker & Power, JJ.A.

Date of hearing: 18 December 1987

Date of handing down judgment: 13 January 1988

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J U D G M E N T

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Barker, J.A.:

1. This is the Attorney General's application seeking review of a sentence of 5½ years' imprisonment passed upon the Respondent in respect of a conviction for robbery.

2. The Respondent was charged with four counts of robbery. Through his counsel he offered to plead guilty to Count 4, if the prosecution would accept his pleas of not guilty to Counts l - 3. This offer was hedged with conditions, and, understandably the Crown refused to accept it. In the event, after a trial lasting nine days, the Respondent was acquitted on Counts 1 - 3 and convicted on Count 4.

3. The robbery of which he was convicted was a serious one. It occurred during the early hours of the morning on private premises. Entry had been gained to those premises by the pretence of the Respondent and his two confederates that they were police officers. All three robbers were armed with knives, and the victims were tied up, gagged and blindfolded.

4. The trial Judge took as his starting point for sentence eight to nine years. This stance was based on Mo Kwong Sang v. The Queen^(l). Criticism has been made by Counsel for the Respondent that this starting point was too high. We disagree. If anything, it was on the low side. Cases laying down guidelines are not, like the laws of the Medes and the Persians, immutable, and it may well be that in the future, the Court of Appeal will wish to revise the guidelines in Mo Kwong Sang⁽¹⁾ upwards. In this review we accept them.

5. The Respondent pleaded not guilty, his defence being that he was not at the scene of the crime at all. He levelled serious accusations against the Police, which was clearly not accepted by the jury. He has 38 previous convictions for crime, as a result of which he served sentences of 14 years' imprisonment. These are not matters which go to increase his sentence, but they clearly disentitle him to any discount.

6. The factor which clearly influenced the Judge in passing the sentence which he did was an offer made, by the Respondent's Counsel, to give information to the police about the other culprits and, if they were ever brought to trial, to give evidence for the Crown. It was for this reason that the Judge reduced the sentence from 8 - 9 years to 5½years.

7. Following his conviction, the Respondent did give a statement to the Police in which he named two confederates, giving a fairly definite location of the home of one and a vague description of the location of the other. The Police have been five times to the supposed home of the former confederate without success.

8. In Reg. v. Lau Ying Wai⁽²⁾ Clough J. said,

"     It is now well settled that in the case of serious crime, if one of the accused gives assistance which is of same value to the police, it is in the public interest that this should be taken into account and should lead to some reduction in his sentence at the trial.

We consider that in a situation of this kind he should have much further allowance for the quality of the assistance that was given to the police and that an overall reduction of about one third would have been right and fair."

9. In the instant case, the Judge made no enquiry as to the quality of the assistance given to the police. What, in our view, he should have done, was to adjourn the case so that the value of the information given by the Respondent could be assessed. Had he done so, it would have been apparent that the information was useless.

10. We reiterate what this court said in Reg. v. Ng Chi-wai⁽³⁾:

"He has, through his counsel told this court that he is prepared to give evidence if the people whom he has named are arrested and charged. If this happens and if he does give credible evidence. then it will he a matter for the executive as to whether or not they reduce his sentence."

11. Had we been passing sentence in this case, are would have imposed a term of 9 years' imprisonment. However, in deference to the long standing practice on an Attorney General's review of awarding a somewhat lesser sentence, we set aside the sentence of 5½ years' imprisonment and imposed one of 7 years' imprisonment.

(1) Cr. App. 359/81

⁽²⁾ Cr. App. 113/86

⁽³⁾ Cr. App. 348/84

Representation:

I.G. Cross & Mary Sin for Crown/Applicant.

Edward Laskey (D.L.A.) for Defendant/Respondent.