HKSAR v. Poon Shu Lung and Others

CACC000593/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1996, No. 593
(Criminal)

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Coram: Hon. Leong and Stuart-Moore, J.J.A. in Court

Date of hearing: 17 February 1998

Date of delivery of judgment: 17 February 1998

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. These are applications for leave to appeal against sentence.

2. The applicants were jointly charged with conspiracy to rob. The 1st applicant Poon Shu-lung pleaded guilty at the outset on the 1st day of the trial. The 2nd applicant Lee Lung-yick and the 3rd applicant Cheung Lung pleaded guilty at the end of the voir dire proceedings on the admissibility of their statements.

3. The admitted facts against the three applicants are the same. At about 1.50 p.m. on 12.1.96, police officers acting on information raided the premises at Room 3102, Ho Mong Court, King Lam Estate in Tsang Kwang O. All applicants were found inside the premises. The 1st applicant was the tenant of the premises.

4. On a search of the premises, police officers found one self loading pistol, 8 rounds of ammunition suitable for use in the pistol, a knife and some plastic restraints. The pistol when tested was found to be in working order.

5. After they were arrested, all three applicants made statements under caution in their video recorded interviews by the police.

6. In his interview, the 1st applicant admitted that he had agreed to take part together with the other two applicants in a robbery planned by a man called Chan Bing-kuen. He had gone with Chan to view the location where the robbery was to take place. His role was to take the other two applicants to the location just before the robbery and thereafter, he would leave. However, he knew that the pistol, knife would be used in the robbery and the plastic restraints would be used to tie up the victims. The robbery proceeds were expected to be around HK$100,000.

7. The 2nd and 3rd applicants in their interviews admitted they came to Hong Kong about four weeks before their arrest to find work and had been staying in the premises since. It was only the night before they were arrested that they were told about the robbery Chan had planned. The pistol was shown to them and they agreed to participate in the robbery knowing the pistol and knife would be used in the course of it.

8. The facts thus show that the prime mover of the offence was the man Chan. Chan was arrested but he was subsequently freed because of lack of evidence against him.

9. In the course of mitigation, the applicants indicated to the trial judge that they were willing to co-operate with the police in the investigation of the man Chan. But there was nothing concrete at that stage.

10. The trial judge in sentencing the applicants said:

"Plotting to commit armed robbery involving firearms must be viewed as a most serious matter in Hong Kong. It is clear that only because of the timely and professional intervention by the police was an actual armed robbery averted. There is no doubt that the undertaking had been carefully and professionally planned and was on the point of commission.

From the facts that have been read and agreed, it is clear that the Crown has accepted the pleas on the basis that all three defendants knew that firearms were to be carried on the robbery. Also to be carried was the knife as well as plastic restraints which were going to be used to subdue persons who might have obstructed the robbery. But the most important thing, of course, and what is impossible to ignore, is that fact that firearms were to be used."

11. As regards the suggestions by the applicants to give assistance to the police, the judge said this:

"I have noted that you are prepared perhaps to help the police in their continued investigations, but I cannot give you credit for promises to assist the police. You can only be given credit, may be at a subsequent stage, for actual assistance which is given ..."

12. Thus it is clear that the judge had in mind the serious circumstances involved in the conspiracy and the offer of assistance to the police by the applicants when he considered the sentence he was to impose on the applicants.

13. The judge considered a starting point of 12 to 15 years but he adopted the lower end of this range i.e. 12 years as the starting point after taking into account the mitigating circumstances. Mr Forrest and Mr Draycott for the applicant had no quarrel about this starting point. The judge gave the 1st applicant the full one-third discount for his plea at the outset and he sentenced the 1st applicant to 8 years' imprisonment. He treated the 2nd and 3rd applicants equally. He adopted the same 12 years as a starting point but because they came from China illegally to commit robbery and did not plea guilty at the outset, he gave them 3 years reduction which was less than the one third for a plea. Mr Forrest also had no quarrel about this 25% discount. The judge sentenced each of them to 9 years' imprisonment.

14. After their conviction and sentence, each applicant made witness statements which implicated Chan. As a result, Chan was subsequently rearrested, charged and prosecuted for conspiracy to rob. He was convicted by a jury at the end of the trial.

15. Counsel for the applicants produced before us an affidavit of the legal aid officer responsible for the applicants' case and annexed with it was a letter from prosecution counsel, Mr. Donald, in the trial of Chan confirming that the applicants had come up to proof in their evidence against Chan and that the jury in convicting Chan had clearly accepted their evidence. Mr. Kripas for the government had no objection to such evidence being adduced before this court.

16. The ground of appeal of all three applicants in their perfected grounds of appeal is the same and that is their sentences are manifestly excessive in the circumstances of this case, having regard to the applicants' assistance given to the police and thereafter evidence in court against Chan leading to the latter's conviction.

17. On the judge's starting point of 12 years, we have no hesitation to conclude that it is an appropriate sentence in all the circumstances of the case. The three applicants had gone into a conspiracy to commit a robbery in which they expected to reap substantial proceeds. They planned carefully. The location was visited and the necessary weapons which included a pistol and ammunition were obtained the night before the robbery. It also involved the participation of two illegal immigrants who came to Hong Kong prior to the robbery and if the robbery were successful, it would be unlikely that they could be traced once they sneaked back over the border. The applicants were on the verge of proceeding to execute their plan had it not been, as the judge had put it, averted by the timely and professional intervention of the police.

18. The discounts for plea and difference between the reduction received by the 1st applicant and that received by the two applicants are justified. A defendant who pleas guilty at the outset should be given more credit than one who pleas guilty after the trial had gone on for sometime, albeit not the full length of the trial.

19. We also agree with the judge that he could not have given credit for their suggestions of assisting the police until they had given actual evidence. The course taken by the judge was in accordance with the normal practice.

20. Counsel for the applicants submitted that the applicants had now actually given evidence against Chan and they should be given the appropriate discount for what they had done. On the list of authorities produced by the prosecution, the case of SZE Tak-hung is the authority that this court on an application for leave to appeal against sentence, has a discretion to take into account that the applicant had given evidence for the prosecution after sentence had been passed and this court may replace the original sentence with such sentence as we think fit.

21. Counsel for the applicants had agreed that the applicants, could not be put into the category of "supergrass" in which case, a maximum reduction of two thirds could be given.

22. We are satisfied that these applicants had given valuable assistance to the police and evidence against Chan. Without their evidence, it is unlikely that Chan would have been convicted. The applicants should in these circumstances deserve further reduction than what they had been given, albeit what they had done was after sentence had been passed on them. However, we are unable to say that there is evidence to show that the applicants had done so at considerable risks either to themselves or their families. We cannot say that they come within the category of "supergrass" which would entitle them to full discount of up to two thirds.

23. We would therefore reduce the sentence of 8 years in the case of the 1st applicant to one of six years, and that would be a 50% discount from the starting point of 12 years. We would also reduce the sentence of 9 years in the case of the 2nd applicant and in the case of the 3rd applicant to one of 7 years giving them the same further reduction as the 1st applicant.

We grant the applications for leave to appeal against sentence treating the applications as the hearing of the appeals and reduce the sentences accordingly.

Representation:

Mr. K.S. Kripas, SGC for Respondent

Mr. Robert Forrest, instructed by D.L.A. for 1st and 3rd Applicant

Miss Charlotte E Draycott, instructed by M/S Tang, Tso & Lau for 2nd Applicant