THE QUEEN v. CHAN KWOK LEUNG

IN THE COURT OF APPEAL

1995, No. 114
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. For reasons which will become apparent in our judgment, we granted the applicant's application for extension of time to make his application to appeal against the sentence. We treated the hearing of the application for appeal against sentence as hearing of the appeal and allowed the appeal. The totality of the sentence was accordingly reduced from one of five years to four years. We now give our reasons.

2. The applicant pleaded guilty to one charge of attempted theft of a car and another charge of theft of a pair of registration plates. He pleaded not guilty but was found guilty in respect of a charge of theft of another car. For the first offence he was sentenced to 21/2 years' imprisonment; for the second 6 months, the sentences to run concurrently and for the third offence, he was sentenced to 21/2 years' imprisonment, that sentence to run consecutively with the previous sentences.

3. In passing sentence, the judge stated that the pleas of guilty were tendered at the last minute and in the face of overwhelming evidence against him. It would appear that it was for this reason that he gave no credit for the pleas of guilty. In our judgment, pleas of guilty ought to be encouraged because a plea of guilty indicates remorse on the part of the accused and/or because it saves court's time. In our view, some credit ought to be given for the applicant's pleas though of course he must not expect a generous discount in his case because the highest credit would only be given where a plea of guilty is entered at the first opportunity.

4. Having regard to the authorities cited to us this morning, it seems to us that the starting point of four years after trial adopted by the trial judge for the attempted theft and the theft of motor vehicle is too high in respect of one count only.

5. The facts of the case could be briefly stated. In August last year, the applicant was one of a party of four men in a failed attempt to steal a Mercedes Benz in the Westlands Garden Car Park. It was discovered that the door of the Mercedes Benz had been prized open and the ignition switch was damaged. The applicant's fingerprints were found on the parking ticket used by the culprits. The registration plates used on the culprits' car had been stolen earlier that same evening. These facts relate to the first and second offences.

6. As to the offence to which the applicant pleaded not guilty, the trial judge found that the applicant was one of a party of three men who stole the BMW. Of the three men, one was the driver of the vehicle in which the culprits travelled originally, another person broke into and drove the stolen the BMW and the third travelled in it.

7. There was no finding that the applicant was the man who had broken into and had driven the BMW away afterwards.

8. In mitigation, it was brought to the trial judge's notice that the applicant was 29 years of age and though he had a criminal record, it did not relate to the offences before the court. It was also said that he pleaded guilty to two of the three offences charged and the third offence was part and parcel of the first offence. It was further submitted that he had co-operated with the authorities by offering information though it was not entirely clear to what extent his information was helpful to the authorities.

9. Taking into consideration the facts of the case, we are of the view that the applicant's role, which could not be described as either significant or decisive, was nevertheless an active one. In all the circumstances of the case and for the reasons which we have already indicated, we allowed the appeal against sentence and, as we have said, reduced the totality of five years' imprisonment to four years.