R. v. Yan Im Kun

CACC000680/1996

IN THE COURT OF APPEAL

1996, No. 680

(Criminal)

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Coram: Bokhary, Mortimer & Mayo JJA in Court

Date of hearing: 28, May 1997

Date of judgment: 28, May 1997

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J U D G M E N T

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Bokhary JA:

1. This applicant, a man in his mid-20's, seeks leave to appeal against a six-year sentence passed on him by Deputy Judge Wilson in the High Court on November 6 last year for one offence of robbery to which he pleaded guilty.

2. Upon pleading guilty, the applicant offered to give evidence for the prosecution. Then his co-accused pleaded guilty one after another so that there was, in the result, no occasion for him to give evidence for the prosecution. There was no question, therefore, of waiting to see whether he would fulfil his promise.

3. When he came to pass sentence, the judge said that he discounted the applicant's sentence for his guilty plea and for his offer to give evidence for the prosecution.

4. Mr Reading for the respondent has very fairly conceded that there was no good reason in the present case for not giving this applicant the by now fairly standard one-third discount for a guilty plea alone. In the present case, the total discount given by the judge came to precisely one-third. We are driven to the conclusion, therefore, that either this applicant received too small a discount for his guilty plea or that the discount which he received for his offer to give evidence for the prosecution really came to practically nothing in reality.

5. It is of course now well-established that in the normal way no reduction in sentence is to be given merely for a promise to give evidence for the prosecution. The practice is to wait and see if the promise is fulfilled, and then give a reduction for it if it is. That can be done: (i) by the sentencing judge adjourning sentence; or (ii) by the matter being dealt with by this Court on an appeal if the offeror has fulfilled his promise by the time the appeal comes on; or (iii) if the timing does not permit either of those courses, by a reduction being accorded under the prerogative of mercy exercised by the executive.

6. The present case, however, is not a normal case. By the time the judge came to sentence this applicant, there was no longer any occasion for him to give evidence for the prosecution. But there was no reason at all to suppose that he would not have fulfilled his promise if the occasion had presented itself. What is more, it would seem likely that his offer had a lot to do with the decisions of his co-accused to plea guilty. Where there is more than one accused, that each of them should have an incentive to be the first to plead guilty and offer to give evidence against the other or others is a very good thing. Whatever may be said about the rat race, the courts should give criminals every incentive to enter a race to rat, so to speak.

7. All things considered, we think that this applicant is entitled to a reduction in sentence. In the result, we treat his application for leave to appeal as the appeal itself, and allow it by reducing his sentence by one year from six years to five years.

Representation:

Mr R.G. Walters (instructed by the Director of Legal Aid) for the applicant

Mr John Reading (of the Attorney General's Chambers) for the respondent