The Queen v. Ho Tak-wing and Others

CACC001108/1982

[Discount for pleas of guilty to be encouraged]

BETWEEN

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Coram: McMullin,V.-P., Li Silke, JJ.A.

Date: 23rd February 1983

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JUDGMENT

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Silke, J.A.:

1. This is an application on behalf of the 1st, 2nd and 3rd applicants - who were the 3rd, 4th and 5th defendants respectively at trial - for leave to appeal against the sentences passed upon them.

2. The 1st applicant was convicted of three counts of robbery and one offence of possession of offensive weapons. The 2nd applicant was convicted of two counts of robbery and also on the count of possession of offensive weapons. Mr. Huggins appeared for both. The 3rd applicant was convicted on two counts of robbery and also the offence of possession of an offensive weapon. Miss Toh appeared for him.

3. We are not concerned with any appeal in relation to the sentence imposed on the possession of offensive weapons count.

4. The first robbery - count one - took place in October of 1981. One of the robbers - and there was more than one - produced a knife the others picked up available choppers.

5. Count seven, the second in relation to the three applicants, involved three persons all of whom had knives.

6. The 1st applicant faced on his own the 8th count on the indictment - robbery - in which knives were used.

7. Each of the robberies took place in a noodle shop after midnight. Each of the applicants pleaded guilty at trial. Each had, in fact, confessed at the outset to the police.

8. The 1st and the 2nd applicants were aged almost eighteen and a half and slightly over eighteen and a half respectively at the time of the offences. The 3rd applicant was aged over twenty.

9. The main point of the appeal, as argued before us by Mr. Huggins and adopted by Miss Toh, was that, in considering the sentences which he should impose the trial judge had said that, after trial, he would have in mind a sentence of nine to ten years. This seemed specifically to relate to the 1st and the 2nd applicants and it is argued that in the light of MO Kwong-sang^(l) and the guidelines therein set out, this assessment: in view of the nature of the robberies here, the circumstances surrounding them, that is the number of persons involved, the fact that were used, the time although the time of itself was not of paramount importance - at which the robberies took place, and the premises in which they took place, and business premises - the number of robberies involved: went outside those general guidelines.

10. It seems clear that the trial judge did approach sentence on the basis of that which he would have given had there been a trial and then discounting those sentences by reference to the pleas of guilty, the clear records of the first two applicants and their ages. A very proper approach.

11. Miss Toh made a general submission that a greater discount should be made in respect of pleas of guilty than that now being given. On this we would simply say that pleas of guilty at the outset of the trial should be given some discount - even if the evidence is overwhelming insofar as they do save time and expense. It might be that such discount would rise somewhat if pleas were made at the first available opportunity, and we have in mind the committal proceedings. However,  that is simply an extension of the general principle that in order to save time and expense pleas should be encouraged.

12. Coming back to the instant case: we feel that the trial judge did start at somewhat too high a level in considering the sentences to be imposed. He gave discounts, as was proper, for the clear record, the age and the plea. This was not one of the worst kind of robberies and this Court has become more and more accustomed to the very serious type of robbery in recent time. We think we should reflect the too high start of nine to ten by reducing the sentences on the 1st and the 2nd applicants from eight years to seven years on count one and count seven - and on the 8th count in relation to the 1st applicant - without upsetting the totality principle on which the judge clearly approached the case.

13. In respect of the 3rd applicant: Miss Toh suggested that there should not have been any difference based upon his previous record as opposed to the clear records of the first two applicants. With respect we do not think this point to have substance.

14. The 3rd applicant had been convicted of burglary and had been sentenced to a Detention centre. This did not seem to be very effective in so far as he was recalled twice while under supervision after his initial release.

15. At the time the present offences were committed he was on probation. He did, of course, receive an actual sentence from the trial judge in relation to the offence for which he had been placed upon probation - three months consecutive to the other sentences passed.

16. However the sentences of nine years will, for the reasons that we have given in relation to the 1st and the 2nd applicants, be reduced to eight years on the 1st and the 7th counts - leaving a totality of eight.

17. The application is granted and the appeal allowed to the extent indicated.

(1)    (1981) H.K.L.R. 610

Representation:

A. Huggins, Esq. instructed by Messrs. Hampton, Winter & Glynn for the 1st and 2nd applicants.

Miss Esther Toh, assigned by D.L.A. for the 3rd applicant.

M. Jennings, Esq. for Crown/Respondent.