The Queen v. Kwok Chi Kwan and Another

CACC000025/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Silke, J. A., Power & Nazareth, JJ.

Date of Hearing: 15th April 1986

Date of Judgment: 30th May 1986

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JUDGMENT

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Silke, J. A. :

1. Kwok Chi Kwan - "D1" - was jointly charged with and pleaded guilty to four counts of robbery. Sin Muk Kam - "D2" -pleaded guilty to the same counts and to a further count of robbery which concerned him alone. All the offences occurred in lifts in Wong Chuk Hang Estate between 26th September and 22nd October 1985. In each incident, the persons robbed were threatened with a knife; there were, in sequence, two victims, three victims, ten victims and seven victims. On the fifth count there were four.

2. Both applicants had clear records. D1 was aged 22 and D2 was aged 23. The judge called for probation and Detention Centre reports but, although both applicants were considered fit for detention, he was satisfied that because of the gravity and multiplicity of the offences, sentences of imprisonment must be imposed.

3. The judge's approach was this. He was of the view, relying no doubt upon Attorney General v. Wong Sai Cheong,⁽¹⁾ that five years imprisonment was the appropriate sentence, without allowance for plea, for a single armed lift robbery in company. He considered that a year should be taken from the sentence to acknowledge the plea.

4. As regards D1 he thought that one year should be added for each additional robbery, giving a total of eight years; that the overall sentence should be reduced by one year on plea, making an overall sentence of seven years.

5. As regards D2 he said that, as he had actually carried the knife in the robberies, the four robberies, together with the additional fifth, merited an extra five years, making a total of ten years which he reduced by one year for plea.

6. The judge was in error, when he indicated that D2 had always carried the knife. The agreed summary of facts shows that D1 had carried a knife in the second offence. It does not make clear who was holding the knife in the first offence.

7. In the event, the judge imposed sentences of seven years on both - the maximum in his jurisdiction under the District Court Ordinance. He achieved this by, in each case, sentencing the applicant to five years imprisonment on each charge and then ordering that the sentences on the 2nd to 4th charges, as regards D1, and on the 2nd to 5th, as regards D2, be served concurrently but to commence two years after the commencement of the sentence on the 1st charge.

8. We think this method to be mistaken. Section 82(1) of the District Court Ordinance provides that where the court sentences any person to undergo a term of imprisonment for an offence and such person is at the same time sentenced to undergo imprisonment for another offence, it shall be lawful for the court to direct that such imprisonment shall commence at the expiration of the term of imprisonment which such person has been previously sentenced to undergo. In our view this section can only be interpreted to mean that consecutive sentences must be directed to commence at the expiration of the previous sentence and not otherwise.

9. Section 67A of the Criminal Procedure Ordinance has not been made applicable to the District Court.

10. The trial judge clearly gave consideration to the pleas of guilty. The sole issue for our determination is did he give sufficient discount to allow for the fact that the trial took place in the District Court and that the pleas were entered at the first opportunity, plea day.

11. The argument has centered around certain passages in Mo Kwong Sang⁽²⁾ where the Chief Justice, in delivering the judgment of the Court, gave approval to the mechanics of the method used by the trial judge here when he said:

"We realise that the adoption of this suggested level of sentencing will mean that in some cases the appropriate sentence will be above the maximum which the District Court is permitted by law to impose."

And again,

"Where a District Court would be disposed, had it power to do so, to impose a sentence exceeding seven years, the correct course would be for the judge to indicate what sentence he would have awarded if he had been able to do so and then to impose one of seven years imprisonment."

12. Bearing in mind that the guidelines in Mo ⁽²⁾ were intended to apply to those convicted after trial, we are, so far, in respectful agreement.

13. The difficulty arises from that passage in Mo ⁽²⁾ which states:

"Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty."

14. This suggests that the "High Court approach" should be adopted by a trial judge who, having arrived at that which he thinks to be the proper sentence to be imposed after trial, discounts if for plea but, having arrived at the finally appropriate sentence, finds it outside the limits of his jurisdiction and then imposes that limit.

15. The effect is that no real allowance is made for the plea.

16. Pleas of guilty are to be encouraged for various wall known reasons: to give allowance for the remorse indicated by such a course - though of course "remorse" can take many forms from the genuine sorrow to an acceptance of the inevitable -; to assist in the saving of time - thus bringing more speedily to trial cases waiting in the lists and expense: to avoid the necessity for the bringing of witnesses to Court - thus avoiding disruption in the daily lives of those involved. Pleas made at the earliest possible moment deserve greater encouragement.

17. If Mo⁽²⁾ were to be strictly applied then there would be no such encouragement and, in consequence, those whose duty it is to give advice to defendants would find themselves in some difficulty.

18. We accept that charges, over which the Attorney General has complete discretion, are not brought in the wrong court on any regular basis and that when they are, as here, then a defendant may be said to have an advantage given him. But this is an advantage unsolicited by a defendant and it should not result in what can be termed the legitimate expectation of some recognition of a plea being denied him.

19. What that recognition, in the sense of a discount, might be is entirely at the discretion of the trial judge. He is entitled to give weight, as was also said in Mo, ⁽²⁾ to "the record, age or other personal circumstances" of a defendant and a court should not be inhibited from adjusting guidelines accordingly.

20. We thought all of this to involve a matter of sentencing policy. We have, therefore, seen fit to consult with the Chief Justice and the Vice-Presidents. While there is a divergence of opinion, we have come to the view that some recognition should normally be given to pleas of guilty even where, as here, the trial judge arrives at an "appropriate sentence outside the limits of his jurisdiction.

21. In this instant case, to give effect to those views, we grant the application for leave and allow the appeals. We think the appropriate sentence on D1 in all the circumstances to be one, in totality, of six years and that on D2 to be one of 61/2 years.

22. We set aside the sentences imposed on D1 on counts one to four and substitute therefor sentences of six years on each count to run concurrently. We set aside the sentences imposed on D2 on counts one to five and substitute on counts one to four sentences of six years on each count to run concurrently, one with the other, and substitute a sentence of 6½ years on count five to run concurrently with the sentences on counts one to four.

(1)    Application for Review No. 1 of 1985

(2)    [1981] H. K. L. R. 610 at 611

Representation:

P. J. Dale, Esq. (Crown Prosecutor) for Respondent.

F. Wong, Esq. (D. L. A.) for Applicants.