The Queen v. Cheng Muk Ching

Case No.CACC 29/1986

Court

Court of Appeal

Date20 May 1986

Judge—

Case Document

100%Judiciary

CACC000029/1986

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 29 OF 1986

BETWEEN

THE QUEEN

Respondent

AND

CHENG MUK-CHING

Appellant

_________

Coram: Hon. Roberts, C.J., Hon. Kempster, J.A., Hon. Power, J.

Date of Hearing: 25 April 1986 & 28 April 1986

Date of handing down of judgment: 20 May 1986

___________

JUDGMENT

___________

Power, J. :

The Charge

1. The applicant seeks leave to appeal against a sentence of four years imposed on him by Daniell D.J. in Kowloon District Court on 2.1.86 after he pleaded guilty to a charge of possession of fire arms and ammunition without a licence. The particulars of the charge stated that he was in possession of a Husqvarna 9 mm automatic pistol with one round of ammunition, one MAB 7.65 mm automatic pistol, with two rounds of ammunition and one Colt S & W .38 revolver with four rounds of ammunition, two cartridge cases and ammunition, namely twenty nine rounds of 7.62 x 25mm cartridges, eleven rounds of 9mm MAKARON cartridges, one round of .38 S & W cartridge, one round of 9mm cartridge and one reload .38 S & W cartridge without a licence at his home at Room 113, Block 25, Shek Yam Temporary Housing Area, New Territories, between the 13th of March 1985 and the 22nd of March 1985.

The Hearing of Plea

2. After plea of guilty a summary of facts was read to the applicant and admitted by him.

3. The summary stated that following the arrest of two men on the 21st of March 1985 in connection with the robbery of the Chow Tai Fook Goldsmith Shop in Kowloon City during which one robber was killed and a policeman was seriously wound by gun shot, the police searched the applicants home and found that the arms and ammunition, the subject of the charge.

4. Examination showed that one or more of the firearms had been used in a number of armed robberies in Hong Kong in recent years. It was not suggested that the defendant was involved in those robberies or that he had hired out the arms for that purpose. The arms and ammunition were found in a cunningly concealed hiding place behind a false back to a wall cupboard which had been especially adapted for that purpose.

5. The applicant was not located until the 2nd of December 1985 and, after arrest, he admitted that the firearms and ammunition had been brought to his address by the other two arrested men at whose suggestion he had earlier prepared the hiding place and that he was paid $3,000.00 to store them. We set out in full the final passage of the summary of facts -

"Following his arrest he gave important evidence at the trial of the two men who had brought the arms and ammunition to him. Their trial on charges of murder, robbery, wounding, using firearms to evade arrest and handling stolen property was then proceeding in the High Court and it is considered that he satisfied the terms of the limited indemnity he was given in respect of that evidence - i.e. that he gave full and true evidence to the best of his ability."

6. Mrs. Panesar, who appeared for him on his plea, told the judge that one of the two men had brought the arms and ammunition to his but and that, at the time when he agreed to hide them, he was threatened and told that, if he reported the matter, his safety would be in jeopardy She said that the applicant had then reluctantly kept them. She stressed that he had made a frank admission to the Police and had given evidence at the trial which resulted in the conviction of the two men on the very serious charges which they faced.

The Reasons for Sentence

7. The trial judge, when sentencing, took into account the serious nature of the offence and added "I have no doubt that he must have well known that the weapons were likely to be used in furtherance of violent crime". He accepted that the applicant was not involved in the robberies in which the weapons were used; that he cooperated with the Crown, and, in particular, that he gave evidence at the trial of the two men; that he had a clear record and had pleaded guilty which he said he took to be indicative of remorse. The judge imposed a sentence of four years saying that, but for the mitigating factors, he would have imposed a sentence of six years.

The Grounds of Appeal

8. Mr. Ford, who appeared with Mrs. Panesar for the applicant in this Court, submitted that the trial judge was right in holding that six years would have been the appropriate sentence but for the mitigating factors. He submitted, however, that the judge :

	(i)	failed to give sufficient weight to the mitigating factors and in particular, to the risk that the applicant had taken, by volunteering to testify for the Crown against the two;
	(ii)	should have made enquiry as to the extent to which the evidence of the applicant was a major factor in the conviction of the two men and as to the nature of the immunity offered to the applicant by the Crown as to his giving evidence;
	(iii)	was wrong to have acted upon the basis that the weapons were likely to be used in furtherance of violent crime;
	(iv)	failed to give any weight to the element of coercion which existed at the time when the applicant agreed to allow the arms to be hidden in his house; and
	(v)	had failed to give due weight to the public interest in encouraging those on the periphery of serious violent crime to assist the Crown by giving evidence against other offenders.

9. He finally submitted that the applicant was entitled to a discount of at least 2/3 of his sentence.

The Attitude of the Crown to the Appeal

10. Originally Mr. Shaw appeared for the Crown in this matter. However, after an adjournment, Mr. Cagney who had been the counsel originally involved, both in the prosecution of this applicant and that of the other two men, appeared. Mr. Cagney told the Court that the applicant had been apprehended during the trial of the other two men and that he had given "clinching" evidence for the prosecution in that trial under an immunity which showed that the Crown had undertaken not to use the evidence which the applicant gave in that trial on the present charge.

11. Mr. Cagney said that he had undertaken to appear when the applicant pleaded to the present charge to ensure that the Court was fully informed as to the circumstances which mitigated in the applicant's favour. He said that, having presented the summary of facts, he was not called upon by the judge after Mrs. Panesar had mitigated, as he had expected he would be, and that he did not, therefore, have the opportunity to say anything.

12. Mr. Cagney further said that, had he been called upon, he would have acknowledged that the applicant was entitled to have taken into account, not only the fact that he had pleaded guilty, but also that he had, in giving evidence for the Crown, faced a real risk. He had been prepared to agree that the two men were extremely violent and would not have contested the suggestion from the applicant that he had been told that he would be shot if he ever informed the Police.

13. He said that he would also have been prepared to acknowledge that added pressure had been bought to bear on the applicant because of some suggested kinship with one of the two men. He said further that the Crown did not take the view that the applicant would, when he concealed the arms, have been looking ahead to the time when the weapons might have been recirculated as the concealment took place in rather hectic circumstances immediately after the robbery and was, probably, primarily directed towards preventing evidence from falling into Police hands. Mr. Cagney said that the Crown took the view that the sentence was too heavy and that the matter had, to an extent, gone wrong because he had not been called upon.

Decision on the Grounds of Appeal

(Ground (i) is dealt with last)

	(ii)	The judge should have made further enquiry as to the extent of the evidence given by the applicant and the nature of the immunity. We see no warrant for such a suggestion. The judge acted upon the basis of the facts presented to him which disclosed that the appellant had given important evidence and had satisfied the terms of his immunity. He was not asked to make further enquiry and no onus lay on him so to do. We would add that the recipients of immunity and their legal advisers should always be furnished with copies of immunities written both in Chinese and English.
	(iii)	The judge was wrong to have acted on the basis that the weapons were likely to be used on the furtherance of violent crime. While it may well be that the immediate purpose, as the Crown concedes, was to conceal the weapons it seems to us a proper, indeed inescapeable, inference that the applicant must have had in his contemplation that, when the dust settled, the weapons would once again be put to some criminal purpose.
	(iv)	The judge failed to give weight to the element of coercion.. We are not prepared to give any weight to the fresh suggestions in this regard set out by the applicant in his grounds of appeal with were not before the trial judge. However his counsel did submitto the judge that he was threatened at the time when he agreed to hide the arms and it is true that the judge made no mention of that fact in his statement of findings. Whether he refused to give any weight to this submission, which was not an agreed fact, or considered it to be of no real weight we do not know. We are, therefore, left uncertain in this regard. In the circumstances the judge should have indicated whether or not he accepted that there was an element of coercion and the weight he was prepared to give thereto. In the outcome we do not need to dwell further upon this aspect of the matter as we are satisfied that no reduction greater than that which we allow hereunder could have been made even if the suggested coercion did occur.
	(v)	The failed to give weight to the public interest. He clearly did give weight to the public interest but all consider that, when this factor is allied to (i), to which we turn next, the weight given was inadequate in the circumstances.
	(vi)	The judge did not take into account the risk the applicant took in giving evidence. It is correct, we are satisfied that, through no fault of his own, he did not do so. Mr. Cagney should, in our view, at the very outset, have made known to the judge the view of the Crown, or should, at least, even though not called upon, have risen, after Mrs. Panesar's address, and made plain the Crown position, i.e. not only that he had given vital evidence but also that had placed himself, in real danger by so doing. Alternatively Mr. Cagney should have agreed to appropriate amplification or modification of the agreed statement of facts.

The Appropriate Discount

14. We do not consider that we can properly give any weight to the Crown suggestion that the sentence was too heavy. It is for the Crown to ensure that all relevant facts are before the Court. Sentence is a matter for the judge. Had all the facts been placed before the judge and weight given to the fact that the applicant placed himself in danger by giving evidence the proper discount would have been 50% This was not the kind of exceptional case, which has occurred in the United Kingdom, where, for a "super grass", it has been considered appropriate to give a discount of two-thirds.

The Proper Level of Sentence

15. The judge stated that the proper sentence, if there were no mitigating circumstances, would have been one of imprisonment for six years. We do not agree. Given the seriousness of this offence, we think that, without mitigating circumstances, it would have called for a Sentence of imprisonment of 10 years. The appropriate discount of 50% would have reduced it to five years. A sentence of four years is not therefore manifestly inadequate and we shall not interfere with it. The application is dismissed.

Representation:

Mr. Ford with Mrs. Panesar (D.L.A.) for Appellant

Mr. J.L.M. Shaw, Crown Counsel, for Respondent/Crown Prosecutor