The Queen v. Chan Kwan Mau

IN THE COURT OF APPEAL

1995, No.512A
(Criminal)

BETWEEN

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Coram :  Hon Yang CJ, Mortimer JA and Keith J

Date of Hearing :  25 April 1996

Date of Judgment :  25 April 1996

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the court.

2. The applicant, Chan Kwan Mau, seeks leave to appeal against his sentences, the totality of which is 13 years.  The judge, in assessing sentences for the applicant, adopted a starting point of 27 years.  Taking into consideration the fact that he pleaded guilty and that he had given assistance to the prosecution, she reduced the sentence to 13 years.

3. The gist of the grounds of appeal are that the discount given by the trial judge was not sufficiently generous to reflect the assistance the applicant gave to the prosecution.  He gave evidence against seven men in a number of robbery cases, or cases related to robbery, at some serious risk to himself.

4. It is common ground between the applicant and the prosecution that he falls within a category which is generally described as "supergrass".  It is not necessary for us in this case to reiterate the meaning of the term "supergrass", suffice it to say that we agree with what Power VP said in this regard in the case of R v. Chiu Pak Wing [1995] 2 HKC 819.

5. It is also common ground between the applicant and the prosecution that in the case of a supergrass, up to a two-thirds discount is usually given.

6. In this case, the applicant pleaded guilty to Count 1 which was having arms and ammunition with intent to commit an arrestable offence.  Three loaded pistols and 17 rounds of loose ammunition were found in his flat at Pau Cheung Street.  He admitted that he brought these items from China to Hong Kong to be used in robberies.  He also pleaded guilty to three counts of robbery, namely, Counts 3, 7 and 9.  These referred to a robbery in a jewellery shop where gold ornaments were stolen, a robbery in a restaurant where cash and a watch were stolen, and a robbery in another jewellery shop where further gold ornaments were stolen.

7. Pleas of guilty were also entered in respect of three other counts which paired with the three robbery counts respectively - these other counts were possession of a firearm or imitation firearm at the time of committing those robberies.

8. Lastly, he pleaded guilty to three counts of conspiracy to rob which related to plans to rob three goldsmith shops, namely, the Moon Kee Goldsmith Company, the Chow Sang Sang Jewellery Shop and the Kwong Shing Goldsmith Company.

9. For the possession of arms and ammunition count, the trial judge adopted a starting point of 10 years, for the three robbery counts she adopted a starting point of 18 years, for the possession of arms at the time of committing a robbery a starting point of 5 years, and for the conspiracy to rob counts a starting point of 14 years.  Some of the sentences were ordered to run concurrently, and she arrived at a totality of 42 years for those counts which she reduced to 27 years as a starting point.

10. The robberies were committed with little violence except that a pistol was displayed and in another case a screwdriver was also displayed.  No person was injured.  One shot was fired at the scene.

11. Counsel acting for the applicant in the court below in his plea in mitigation suggested that the applicant was a supergrass and therefore a discount of something between 33% to 50% would be appropriate.  It would appear from the authorities,  we have already said, that for an accused who had pleaded guilty, who falls within the category of a supergrass, a discount up to two-thirds would be appropriate.  The difficulty of arriving at the proper discount is discussed in the case of R. v. Sivan and others (1988) 10 Cr App R (S) 282.  The Lord Chief Justice, at pages 286-287 said:

"As has already been indicated when considering the sentences imposed upon the other three, it is now a well established feature of sentencing practice that credit should be given to a defendant in certain circumstances for assistance or information which he has given to the authorities.  There is no need to cite cases in respect of that.  The cases are legion.  It is an area which is fraught with difficulties, as anybody who has practised in this field at the Bar or who has had to decide this type of case, either at trial or on appeal, will know all too well.

First of all it is by no means easy to discover the true facts.  Secondly, the defendant himself will not be anxious for his mitigating activities to be aired in public.  Indeed, if he thinks there is any danger of publicity attending his efforts he is unlikely to provide the information which he may have available to be provided.  That also means that any information which he does impart often has to be conveyed to the court in writing, and sometimes in the privacy of the judge's room.  That means, regrettably but unavoidably, there is likely to be a lack of the openness which ought to characterise all aspects of the criminal trial.

Thirdly, it is not easy for the judge to determine exactly to what extent credit should be given for the information provided.  Amongst matters to which he will pay regard are the following: the nature and effect of the information imparted - did it relate to trivial or serious offences?  Was the information successful, bringing to justice persons who would not otherwise have been brought to justice, because that is one of the ways, as was pointed out in argument, of testing the veracity and accuracy of the information which has been given?  Next, the degree of assistance which has been provided: was the defendant, for example, prepared, as Greenfield was prepared in this case, to give evidence if necessary in order to bring home the information which he had provided and to assist in the conviction of an offender?  Also, again as illustrated in this case, the judge must take into account the degree of risk to which the defendant has, by his actions, exposed himself and his family.

Within those limits, necessarily very broadly, the judge must bring himself to tailor the sentence so as to punish the defendant, but at the same time reward him as far as possible for the help he has given and - this is as important as anything else - in order to demonstrate to offenders that it is worth their while to disclose the criminal activities of others for the benefit of law-abiding public in general."

12. Taking all the circumstances into consideration, we consider that the assistance given by the applicant was not reflected sufficiently in the discount given.  For these reasons, we allow the application, treat the hearing of the application as the hearing of the appeal, allow the appeal and reduce the totality of the sentence from 13 years to one of 9 years.

13. Those sentences imposed by the trial judge which went beyond 9 years are therefore reduced to 9 years and all the sentences are to run concurrently.

Mr A C Macrae (C K Tse & Co) for Applicant

Mr I G Cross QC and Ms M A Crabtree of the Attorney General's Chambers for Crown/Respondent