R. v. CHU YIU FAI

IN THE COURT OF APPEAL

1995, No. 136 and 137
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court):

1. In these two appeals, which we have heard together, the applicant seeks leave to appeal against sentence out of time. Each appeal relates to a different lot of offences, but the sentences were imposed by His Honour Judge Lugar-Mawson for all the offences at the same time, and the notices of application in both appeals are the same.

High Court case No. 339 of 1993

2. Turning to the proceedings below, on 11th July 1994 in High Court case 339 of 1993 before Deputy Judge Daniel the applicant pleaded guilty to 5 counts of robbery and 1 count of wounding with intent. He was convicted and sentencing was deferred until after the applicant had testified as a prosecution witness in the trial of a co-defendant, Chu Chi-man. That trial commenced but subsequently a mis-trial was declared and later a new trial was commenced before Deputy Judge Lugar-Mawson. All that took time, some 8 months. The applicant was sentenced to 6 years imprisonment for each of the robbery offences, to be served concurrently and to 2 years imprisonment for the wounding offence to be served concurrently with the 6-year terms. The total sentence in respect of that case was therefore 6 years.

3. The facts of that case were that between 23rd December 1992 and 11th March 1993, the applicant with other persons committed a series of robberies of hairdressing salons and karaoke parlours. Staff and customers were tied up and their belongings and money taken, and in one case a person's hand and forehead were slashed by one of the robbers.

High Court Case No. 24 of 1994

4. The other offences, two in number, were dealt with in High Court case No. 24 of 1994. The first charge was robbery and the second of possession of a firearm or imitation firearm used in the commission of that robbery. On 11th July 1994 before Deputy Judge Daniel the applicant also pleaded to these two offences and sentencing was likewise adjourned.

5. The facts relating to these two offences were as follows. On 24th November 1993 the applicant and another person, Choi Kam-fai, entered the Man Wah Watch Company premises in San Po Kong. They asked to see a Rolex watch and when the showcase was opened, Choi produced a pistol and the two took 12 expensive watches and fled. But the applicant was apprehended by a police officer who happened to be in the vicinity. Choi escaped but was subsequently arrested. The pistol used was located and was found to be an imitation pistol incapable of firing.

6. The grounds of appeal, as I have said, are the same in both and in substance they are:

(1) That the sentences were too high or harsh;

(2) That the judge was biased;

(3) That Choi's sentence was ordered to run concurrently and that the applicant played a minor role in the robbery. The applicant has amplified that ground before us today by saying that the other co-accused who were sentenced originally by Deputy Judge Daniel received very light sentences and that some of them are already at large.

7. A factor I have to mention at this point is that in this latter appeal, on 5th May 1995 after he put in his notice of appeal, the applicant lodged a notice of abandonment of sentence. Technically, therefore, his application for leave to appeal out of time should be treated as an application for the abandonment to be regarded as a nullity. But no point has been taken upon that before us, and in any case it would be the merits of the appeal that would weigh in the circumstances.

8. In finally assessing the sentences in both cases, the judge had regard to the totality principle and as will be seen, the sentences he arrived at in each case together totalled 14 years and 9 months, which he concluded was too long. He, therefore, reduced that period to a total of 10 years imprisonment.

9. In sentencing the applicant upon the two offences, the robbery and the possession of firearms, the judge said this:

"You are a man who has been in trouble with the law since you were 16. It would appear from your criminal record that you have never been able to keep out of trouble. You are obviously a man who has decided to lead and continue to lead a life of crime. No discount can be given for your youth, or previous good character."

He then pointed out that it was the sentencing practice in Hong Kong that sentences for possessing of firearms, whether genuine or imitation, were made consecutive to sentences for other offences on the same indictment. He stated that had the case gone to trial and the applicant not pleaded guilty, he would have sentenced him to 10 years imprisonment for the robbery and 3 years imprisonment for the firearm offence, making a total of 13 years. But because of the plea, he discounted those sentences to 8 years and 2 years respectively. He gave further credit to the applicant for his cooperation with the authorities in testifying against Chu Chi-man, further discounting the sentences to periods of 7 years and 21 months respectively, making a total of 8 years and 9 months.

10. I pause there to observe that the applicant complained before us that had he not assisted the authorities in agreeing to testify against Chu Chi-man, he would have been dealt with by Deputy Judge Daniel at the outset and in all probability received one of the very light sentences handed down on that occasion to the several co-accused then dealt with.

11. Returning to the Deputy Judge's reasons for sentence, he turned to the five robbery offences and the single wounding offence in case No. 339 of 1993 and said this:

"I was struck in the course of Chu Chi-man's trial by the cynical way in which these robberies were planned and executed. They would appear to have been carried out only to reward the participants in them with a few thousands of dollars, which they immediately squandered on their own pleasure. In the course of those robberies, innocent persons were tormented and their personal possession stolen from them. In many cases casual, and cynically casual violence, was addressed towards those victims just for the fun of it. I do, however, note in your case you have pleaded guilty to only one count of wounding."

He then took a starting point of 8 years imprisonment in respect of each count of robbery to be served concurrently and 3 years imprisonment for the wounding to be served consecutively to the 8-year term of imprisonment, and by making the latter partly consecutive, achieved a total of 9 years. For the pleas of guilty, he discounted these to 6 years and 2 years respectively to be served concurrently, thus producing a total of 6 years. The 8 years 9 months in respect of robbery and firearm offences and the 6 years in respect of the other offences produced the total of 14 years and 9 months, which he then reduced to 10 years on the totality principle.

12. When one looks at the discount given on both occasions to the plea of the applicant, it can be seen that the judge was not merely less than generous but fell short of the usual discounts allowed. The usual discount in respect of pleas of guilty allowed is a third; he was given significantly less. And in relation to his cooperation, it is plain that was of considerable assistance to the prosecution, like his plea, as Mr Blanchflower very properly has pointed out to us. The discount here was therefore clearly inadequate.

13. In the light of the inadequate discounts and taking a broad view of the entire matter, we think that a substantially greater discount should have been given and been reflected in the totality reduction, such as to bring the total sentence down to 8 years. We accordingly grant the applicant's application for leave, treat the hearing of the application as the appeal and reduce the total sentence from 10 years to 8 years, which we achieve by reducing the sentence of 8 years and 9 months to 8 years and ordering the sentence of 6 years to run concurrently.