Kwan Kin Sang v. R.

CACC000429/1992

IN THE COURT OF APPEAL

1992, No. 429
(Criminal)

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Coram: The Hon. Penlington, J.A., Liu and Wong JJ. in Court

Date of hearing: 2 November 1993

Date of delivery of judgment: 2 November 1993

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J U D G M E N T

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Wong. J.

1. The applicant, who was D1 in the court below, was jointly charged with two other men on one charge of robbery and one charge of taking conveyance of a private car without the consent of its owner or other authority. He pleaded guilty before Judge Hawkes in the District Court at the outset of the trial. The two other defendants, who each faced an additional charge of robbery and another charge of taking conveyance without authority, pleaded not guilty and were convicted after trial. D2 who was on bail during the trial absconded before the judge delivered his reasons for verdict and sentence. D3 received a total sentence of 7 years' imprisonment, which is the maximum the District Court is allowed to impose, for two charges of robbery and two charges of taking conveyance. In respect of the robbery charge, the applicant was sentenced to a term of imprisonment for 5 years and in respect of the charge of taking conveyance without authority, he was sentenced to one year imprisonment, the sentences were ordered to run concurrently. This means that he received a total sentence of 5 years' imprisonment against which he now seeks leave to appeal.

2. The facts were that at about 2 o'clock in the early morning of 13 December 1991, Leung Wing-wah and his girl-friend Choi Suk-mui were inside a private car which was parked in a car parking area at St. Stephen's Beach, Stanley. The applicant and the other two defendants approached and boarded their car. Two of the three defendants were holding knives. Mr. Leung was made to sit in the rear seat of the car, flanked by two of the defendants, whilst his girl-friend remained in the front passenger's seat. The car was driven off by one of the three. Cash and valuables as specified in the particulars of the charge were taken from Mr. Leung and Miss Choi. Mr. Leung was also told to disclose the PIN numbers of his credit cards, which he did. Subsequently, a substantial sum of money was withdrawn from cash machines. The car was eventually driven to Cape Collision Road, near Shek O Road where Mr. Leung and Miss Choi were told to get out of the car and to come back in 5 minutes to pick it up. When they returned, the car was not there and they made a report to the police. Police enquiries started and the applicant and his co-defendants were later arrested.

3. A total of four grounds of appeal were filed on behalf of the applicant, the last one being a general ground that the sentence of five years' imprisonment imposed on the applicant was manifestly excessive and wrong in principle. The other three grounds being:

1. The Learned Trial Judge erred when considering the gravity of the offence, instead of relying on the admitted facts upon which the Applicant had pleaded guilty, took into consideration the evidence given by the witnesses during the trial of the co-defendants.

2. Further or in the alternative, the Learned Trial Judge erred in taking into consideration the evidence given by the witnesses in the absence of the Applicant, and no opportunity was provided to the Applicant in challenging the same.

3. No sufficient weight was given to the Applicant's plea of guilty.

4. Dealing with the 3rd ground, the Judge clearly had this very much in mind, because in his reasons for sentence he mentioned specifically that he took into account the applicant's plea of guilty. He drew a distinction between the case of D3 and the applicant, and he said that D3 had been found guilty after trial and accordingly could not be given credit for a plea of guilty. In my judgment, the sentence of 5 years' imprisonment is entirely proper and in line with the tariff suggested in Mo Kwong-sang v. R. [1981] HKLR 610.

5. This is an armed robbery with aggravating features involving the taking of the victim's credit cards and to use them to withdraw cash from the bank accounts of the victim: R. v. Sun Sheung-chung, Cr. App. No. 152 of 1993. Not only that, the offence was committed by a group of three men and at night or in the small hours of the morning.

6. In relation to grounds 1 and 2, Mr. Wan complained that the judge took into account as it can be seen from the reasons for sentence that a knife was held at the throat of the female victim and both victims were kept in a threatening situation for quite sometime. I am prepared to ignore this aspect of the evidence as far as the applicant is concerned. Be that as it may, I am satisfied that there is no merit in this argument. The offences were committed by the applicant and his accomplices acting in a joint enterprise and he was therefore responsible for the acts of his co-defendants. There are clear authorities that in a case where a co-defendant pleaded guilty it is desirable to defer his sentence until the end of the trial of the co-defendants who have pleaded not guilty. We had been referred to the decision by Mr. Cross in R. and Ma Sai-chuen, Cr. App. No. 286 of 1984. There is also the English decision of the Court of Appeal in R. v. Coffey [1982] 74 Criminal Appeal Cases Reports p.168. I need only refer to the headnote of that case which reads:

"Although there may be cases in which it is desirable that one co- defendant should be sentenced before another co-defendant in general it is better for the trial judge to postpone sentence of those who have pleaded guilty until he had heard all the evidence relating to the count in the indictment out of which the plea of guilty arises. If he does not wait until he has heard all the evidence he may find when he has heard it that he has sentenced on the wrong basis the co-defendant who has pleaded guilty."

I am satisfied that even by looking at the facts contained in the admitted facts alone, which were put before the judge, read out to the applicant and agreed by him, the case is serious enough to justify a sentence of five years' imprisonment. I would like to remark that a copy of the admitted facts was not included in the file of any member of this court. We were only handed with a copy when we made enquiries at the outset of the hearing.

7. I am satisfied that the sentence is neither manifestly excessive nor wrong in principle and leave to appeal is refused.

Liu J.

8. I agree. I merely wish to add this: even assuming the use of the knife in whatever the agreed facts and those in the recital of the judge's reasons for sentence is at variance, the very nature of the offence committed by a group at a car-park in the early hours, culminating in the misuse on a credit card, would warrant this sentence passed on the applicant.

Penington. J.A.

9. I also agree; I would only just add before parting with this case that the 2nd Defendant was on bail and notwithstanding that the trial judge had admitted a confession statement to be introduced in evidence, that bail was renewed despite application by counsel appearing for the Crown that the Defendant be then remanded in custody. I think trial judges should bear very much in mind that when such evidence has been admitted that defendants are then looking at a probability of conviction and, in cases such as this, a substantial sentence. Extension of bail should not be granted unless there are strong grounds for doing so.

10. The ground which has been argued by Mr. Wan does present some difficulty, in that a defendant is entitled when he pleads guilty on the basis of certain facts to be sentenced on that basis. It seems to me that if, for instance, the Statement of Fact had not mentioned any use of a knife and the use of the knife only came out in evidence called after the plea of guilty had been entered, that an applicant would be entitled to feel aggrieved if he was then sentenced on the basis that a knife had been used. In this particular case, a knife was used to threaten this couple as set out in the agreed fact, though there was nothing specific about the knife being put to the lady victim's face with the obvious threat of being disfigured. Nevertheless she must has been extremely terrified during this whole dreadful experience and I entirely agree that the sentence passed can not be said to be in any way excessive.

11. The application for leave to appeal against sentence is refused.

Representation:

Mr. I.G. Cross, Q.C. with W.S. Cheung, Counsel for the Crown.

Mr. Peter Wan, instructed by M/s. Edward C.T. Wong and Co. for appellant (KWAN Kin-sang).