The Queen v. Sze Tak Hung

CACC000313/1988

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Silke, V.P. & Macdougall, J.A.

Date of hearing: 31 August 1990

Date of delivery of judgment: 11 September 1990

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JUDGMENT

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. These are two applications brought by one Sze Tak Hung ("the Defendant") for leave to appeal against sentences imposed by Judge Sharwood, sitting as a Deputy Judge of the High Court, on the 23rd of January last year. No complaint is made that the sentences were excessive at the time. The sole ground in support is that they have become so in the light of the Defendant's subsequent conduct on behalf of the Crown.

2. The Defendant pleaded guilty to taking part in a series of robberies between December 1987 and March 1988.  Most of them were committed while he was released on bail for one. He pleaded also to one charge of handling stolen goods.

3. The offences came before the High Court by way of two separate proceedings. That which is now continued under the listing of Crim. App. 78 of 1989 covered seven robberies. All were of a serious nature and in particular Counts 1 and 2, which involved the invasion of private domestic premises in the early hours of the morning by a number of armed men, the tying up, blindfolding and gagging of the victims and, in the first case, of the victim's wife and two children as well. The single robbery in the proceedings now listed as Crim. App. 313 of 1988, which also included the handling charge, was not dissimilar. But we may say at once that Mrs. Robertson, who appears, as she did below, for the Defendant, has abandoned that application, which, incidentally, would have needed an extension of time, and it stands dismissed accordingly.

4. The judge, dealing with both sets of proceedings together, sentenced the Defendant on the overall criminality involved, using the two most serious robberies, i.e. Counts 1 and 2, as a foundation.  For each of those he imposed sentences of nine years, with six years or each of the remaining six robberies and three years for the handling, all sentences to run concurrently.

5. The application with which we are still concerned was lodged on the 15th of February last year. The delay in the hearing of the application has been occasioned by the Defendant's giving evidence on behalf of the Crown against one Kwok Wai Chuen who was charged, together with the Defendant, in the initial three counts of robbery and was moreover alleged to have committed rape in the course of the first. The trial commenced in December last year but was aborted after the Defendant had given evidence for reasons which do not concern us now. The second trial, at which the Defendant repeated his evidence, did not conclude until March this year. Kwok was acquitted of the rape, possibly due to lack of corroboration, but convicted of the three robberies and sentenced to ten years on each to run concurrently. It is accepted that the evidence of the Defendant was instrumental in securing the three convictions.

6. On the day that the Defendant was sentenced below these matters were, of course, still in the future. At that stage the Defendant had merely indicated his willingness to give evidence against Kwok and had, on that same morning, given information to the police which was likely to, as in fact it did, lead to the apprehension of Kwok who was then at large. Kwok had earlier been charged, together with Defendant, with the robbery in the other set of proceedings. The Defendant had at one stage agreed to give evidence against him in that respect as well, but subsequently the Defendant reneged, explaining through his counsel that he had received threats while on remand in Lai Chi Kok. As a result the Crown had felt obliged to offer no evidence against Kwok. But the Crown did nevertheless accept that at all times the Defendant had maintained his willingness to give evidence on the three robbery charges and the rape.

In passing sentence below the judge said:

"          Of course, it is very difficult for we to fully assess the value of your willingness to co-operate now in the event of KWOK's arrest. But the Crown very frankly have said that you have at all times indicated such willingness and that from an early time you have made a witness statement clearly implicating this man KWOK in serious matters. I take into consideration this situation - your willingness, your stated willingness to co-operate.

…

As I say, I fully take into account your pleas of guilty, your co-operation and your stated willingness to further co-operate."

7. Undoubtedly the judge would not have taken into account the "stated willingness to further co-operate" had he been aware, which of course he could not, of the recent observations of this Court in R. v. Ng Hon Kit and R. v. Ho Chun Keung Crim. Apps. 90 and 91 of 1990 8th August as yet unreported:

"It is our view that, other than in exceptional cases, a court, when considering the discount to be given to an offender who has cooperated with the authorities and who has promised to give evidence against other offenders, should confine itself to what has occurred up to the date of the hearing and should not give credit for a promise to give evidence. Credit should be given for what an applicant has actually done and not for what he promises to do. Genuine cooperation and the giving of reliable information may be worthy of credit but they must be divorced from an unfulfilled promise to give evidence. Where such a promise is given, the hearing of the appeal should, if it is practicable, be postponed until after the trial of the other offender."

8. Not surprisingly no distinction is drawn in the passage quoted between proceedings in the Court of Appeal and at the court of trial. The position is in essence the same and the question whether to delay or not is essentially one for the discretion of each court in the particular circumstances. The only observation we venture to make is that as a general rule it is not desirable that questions of sentence should be left hanging in the air for long periods of time and that it would not seem right to delay the normal course of criminal proceedings indefinitely on the mere chance that the convicted person may at some stage be able to do something which would justify a reduction in his sentence. If at some late stage he does, that is something that can then easily, and in our view more properly, be taken care of under Clause XV of the Letters Patent.

9. It has been suggested in the course of argument that Clause XV goes even further and by empowering the Governor "to grant to any offender convicted of any crime ... a pardon or any remission of sentence" precludes this Court from reducing sentences on grounds such as that now pursued.

10. The submission seeks to derive support from observations of this Court in R. v. Cheung Chi Man [1989] 1 H.K.L.R. 88 where upon an application for leave to appeal against sentences imposed for the possession of dangerous drugs for the purpose of trafficking, it was urged that subsequent to the trial at which the Defendant had pleaded guilty and given evidence against his co-accused he had made a further statement and attended an identification parade, and had become willing to give evidence against another man whom he alleged to be the ringleader of the syndicate. In rejecting the application this Court said at p. 90:

"          So far as his having now identified another suspect and indicated his willingness to give evidence against him, this was after sentence was passed. We therefore do not consider we can take it into account either. However if the applicant does give evidence at the trial of the other suspect resulting in his conviction that would be a matter for the Governor to consider as to a reduction of sentence, pursuant to Clause XV of the Letters Patent."

11. We do not however read that passage as indicating that this Court is unable to take into account evidence given by a convicted person after sentence has been passed upon him. The Court was there concerned with the "willingness to give evidence", i.e. something, as in the present instance below, which was then in the future. The identification of the suspect was, of course, a thing in the past, but it had little or no value on its own, being merely part of a sequence of events which would lead ultimately to the future evidence. It is not uncommon for this Court to take account of circumstances that have occurred since sentence was passed below. More often than not perhaps they are factors which go ad misericordiam or over which the convicted person has no control, but we do not see, as a matter of principle, why that should make any difference, a view which must have been shared by another division of this Court when it did take into account evidence given shortly after sentence had been passed below: R. v. Ma Sai Chuen and Another Crim. App. 286/84 unreported 4 September 1984.

12. This Court is not bound to have regard to such conduct, see R. v. Bowen Times Newspaper 21 November 1988. But if in the exercise of its discretion it decides to do so, we do not understand that Clause XV would, as a matter of authority, stand in its way. We find no overlap between the powers of the Governor and of this Court (which then by implication would be excluded). The Governor may pardon or remit the sentence. This Court can do neither; it can merely replace the original sentence with such sentence as it thinks appropriate to the case: Section 83 I (3) of the Criminal Procedure Ordinance, Cap. 221. The submission appears to be based on the assumption that the sentencing process stops with the court below. With respect it does not. It continues, where appropriate, until finally dealt with by this Court.

13. In view of the excessive delay experienced in this application it is apparent, with the benefit of hindsight, that it might have been better not to have waited. But we have to take the situation as we now find it, which means that we can be certain of facts as to which the judge could only surmise, albeit he did so in the Defendant's favour. We know now that the Defendant's information in fact led to the arrest and trial of Kwok, and that his evidence at the trial led to Kwok's convictions. We accept that as a result the Defendant, and perhaps his family, may face difficulties or even dangers in the future. In addition we are aware, as was tire judge below, that the Defendant had pleaded guilty from the beginning and had given information to the police even at that stage which was useful to them, in particular in dealing with yet another Mr. Kwok.

14. On the other hand the Defendant has committed eight serious and unnecessarily violent robberies, two of them particularly so, in a fairly short space of time. Although still only 33 they were by no means his first and he has already spent a considerable part of his life in prison for similar offences.

15. The question for this Court is whether in all the circumstances that we have set out a total sentence of nine years was manifestly excessive. After anxious consideration, and perhaps following a slightly different route from that taken by the judge below, we have come to the conclusion that it was not. The application is accordingly dismissed.

Representation:

G.E. Forlin, Crown Prosecutor of the Respondent

Mrs. Elaine Robertson (D.L.A.) for the Applicant