R. v. CHAN MAN CHI and Others

IN THE COURT OF APPEAL

1994, Nos. 18, 20 & 21
(Criminal)

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J U D G M E N T

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

1. These are applications for leave to appeal against sentences passed by Leong, J. on different dates in relation to armed robberies, mainly of jewellery shops. They related to Criminal Appeal Nos. 18, 20 and 21 of 1994 but as similar principles applied in each case, by consent, they were heard together. Mr. Andrew Macrae appears for each applicant on the instructions of the Director of Legal Aid and for the Crown we were assisted by Mr. Grenville Cross, Q.C. and Miss Lily Ho.

2. Chan Man-chi (A1) pleaded guilty to five counts of robbery and was sentenced to 12 years' imprisonment on each count, all sentences to be concurrent.

3. Briefly, the agreed facts were that, on 19th February 1987 at 11:25 a.m., A1 and another man held up the staff of the Kit Shing Watch Company in Yuen Long. The other robber produced a "pistol-like object", and he and A1 escaped with over $102,000 worth of Rolex watches. None of which have ever been recovered.

2nd count

4. On 19th March 1991, A1 together with others robbed the Chen Brothers Jewellery Shop in the Mandarin Oriental Hotel Shopping Arcade, and again a pistol-like object was used to threaten the staff members. HK$250,000 and 3 million Japanese Yen was taken plus jewellery valued at over HK$6 million. Of the items that were stolen, only one pair of earrings worth HK$50,000 which had been pawned by one of the robbers, was recovered.

3rd count

5. On 1st May 1991, three men, one of whom was A1, again used a pistol-like object to threaten the employees of the Himmy Jewellery Company in the Regent Hotel Shopping Arcade. Jewellery worth HK$3,244,000 was stolen, none of which has been recovered.

4th count

6. On 6th June 1991, A1 was again one of six persons who used two pistol-like objects to rob the Jewellery Flair shop at 36 Queen's Road Central. Jewellery valued HK$1,518,000 was stolen of which only one necklace worth HK$10,000 was recovered.

5th count

7. On 20th July 1991, five men, one of whom was A1, robbed the Ricco Ricco jewellery shop at The Mall, Pacific Place, Queensway, Hong Kong. Cash and jewellery to the value of HK$12,435,000 was taken. Again, pistol-like objects were used to threaten the staff.

8. The applicant has previous convictions. These were for theft in 1975, membership of a triad society in 1977, three charges of robbery in 1982 and one offence of robbery and one of attempted burglary in 1987. He was aged 32 at the date of his conviction and was unmarried. It was accepted that he did not himself carry any real or imitation weapon.

9. It was the case for A1 that the leader of the group was one Ho Tung-shing who he described as a very violent man and who had been his accomplice in crime since 1981. He had endeavoured to sever his relationships with Ho but had not been successful in doing so. However, in October 1991, he went into hiding with Ho and others at a holiday flat in Cheung Chau. There Ho made certain admissions to him regarding other robberies. He also told him that he was to go to premises at Ma On Shan to collect six guns and HK$4 million in cash. A1 then decided to contact the police and was interviewed by a Chief Inspector Yip Cheung at a hotel in Tsimshatsui. There he made full admissions as to his part in these crimes and said he was prepared to give evidence about the others who were involved. It was this voluntary surrender and assistance to the police that enabled them to make the crucial break-through in this case which resulted in the arrest of Ho and others.

10. It was the submission of Mr. Morris Tracy before Leong, J. that A1 had gone beyond mere cooperation and assistance. He was in every respect a "supergrass". He had given extremely valuable information and was prepared to give evidence in respect of a person who, with every justification, he regarded as extremely dangerous; all of which resulted in substantial risk to himself and members of his family. A1's actions had resulted in the police arresting the members of a highly professional and very dangerous criminal gang who had been eluding them for a long time.

11. Leong, J. took a starting point of 24 years for each count. Accepting what had been submitted on behalf of A1, he reduced that by 50% giving a sentence of 12 years' imprisonment on each charge, to be served concurrently.

12. Before us, Mr. Macrae said he could not quarrel with the starting point of 24 years taken by Leong, J. in light of the multiple offences, the very large amount of jewellery and money taken, the use of imitation firearms and the other factors involved. He did however argue that while the discount of 50% was substantial, A1 did fall squarely within the category of a "supergrass". He had volunteered crucial information and had offered to give evidence. There could be no doubt whatever that he would have given that evidence if he had been required to do so. In the event, however, the other defendants, including Ho, pleaded guilty. He was a man who had surrendered himself when in no immediate danger of arrest and, in view of his belief, which was not in any way challenged, that Ho was an extremely dangerous man, had, as Mr. Tracy had earlier told the judge, placed himself and his family at very considerable risk. There were other members of Ho's gang who had not been arrested and there could be little doubt that Ho, despite being imprisoned, would continue to have influence over them. As a result of A1's actions an extremely dangerous gang of robbers had been apprehended and brought to justice. The actions of people such as A1 were to be strongly encouraged. It was well-known that the arrest of persons responsible for robberies of this sort was extremely difficult and the result of trials by no means certain. Very substantial discount should be given to encourage persons such as A1 to come forward.

13. In R. v. Lau Yau-yuen [1991] 2 HKLR 278, this court had stated that a discount of 12 years from a starting point of 25 years was appropriate for a defendant who had pleaded guilty and given assistance to the police in other cases. There, however, the court had not been asked to treat the applicant as a "supergrass" and falling within the principles in R. v. Chan Fu-kui [1986] HKLR 967. There Roberts, C.J., delivering the judgment of the court, said:

"We then noted that in English cases it had been suggested that it would be proper for the court to allow up to a two thirds deduction for what is called in England a 'supergrass', that is to say, a defendant who had expressed his willingness to assist the police at considerable personal risk in a number of cases. It is for the judge that in each instance on the facts before him to decide into which category a particular defendant falls."

14. The court was satisfied that there the applicant came within the "supergrass" category and should have been given a discount of two thirds of the original starting point of 28 years.

15. While, as was said in Chan Fu-kui, it is a matter for the discretion of the trial judge as to the category into which a defendant who has given valuable assistance to the police falls, we consider that here there was evidence, which was not disputed, that not only had this applicant surrendered himself when under no great pressure to do so, but had then given information to the police which enabled an extremely dangerous gang to be apprehended. We are also satisfied that this was done at considerable personal risk to the applicant himself and to his family and that therefore he does fall clearly within the "supergrass" category. We therefore consider that he was entitled to a reduction of two thirds of the sentence and we allow his application for leave to appeal against sentence, treat this as the hearing of the appeal and reduce the sentence from one of 12 years on each charge to one of 8 years on each charge, to be served concurrently.

16. Chan Kin-chung (A2) was sentenced to a total of 20 years' imprisonment in respect of 14 counts. There is no need to set out each one individually but, between 1st June 1989 and 20th July 1989, A2 took part in 12 robberies and 2 attempted robberies of various goldsmith shops in the New Territories, Kowloon and Hong Kong. In each case, he was together with Ho Tung-shing and other men. Very substantial amounts of jewellery and money was taken. In one case alone, the robbery of the Mabros Jewellery Company, Hing Wai Building, D'Aguilar Street, Central, Hong Kong, cash of HK$45,000 and jewellery worth over HK$27 million was taken.

17. The admitted facts of the 1st count were that not only did the applicant and his fellow robbers attempt to rob the Shui Hing Watch Company in Kowloon City on 1st June 1989 but that one of the men, Ho Tung-shing, was carrying a firearm which was used to shoot and kill the younger brother of the proprietor of the shop.

18. In relation to some of the other counts the applicant himself carried a pistol-like object which he said had been given to him by Ho and that he did not know whether it was real or not. However, in relation to the 3rd count, the robbery of the Chinese Arts and Crafts Company, Whampoa Gardens, Hunghom on 29th July 1989, an employee of the jewellery company was shot and his spinal cord damaged, resulting in paraplegia. In the 4th count, on 9th October 1989, at a jewellery shop in New World Centre, Salisbury Road, the proprietor of the shop was shot in the chest and upper arm. We also take this opportunity of repeating what was said in R. v. Yu Tai-wing Criminal Appeal 454 of 1994 (unreported), namely that in cases of bank robberies, jewellery and goldsmith shop robberies, security van or payroll robberies or such like, no distinction should be made between cases in which genuine firearms are used but not discharged and those in which imitation firearms are used.

19. A2 was aged 30 at the date of conviction and had previous convictions for attempted burglary and theft. He is married with two children.

20. Once again it was contended in mitigation here and below that the ring-leader in these robberies was Ho Tung-shing. After A2 had taken part with Ho in the robbery in which an employee was shot and killed, he was panic-stricken. He was however then contacted by Ho, who was his cousin, and told that once he, A2, had become involved in this sort of thing he could not get out of it. He then agreed to take part in further robberies. He was arrested on 13th October 1991 and then made a statement admitting his involvement in the robberies and indicated that he would assist the police in giving evidence against other defendants if the need arose. He pleaded guilty at the committal proceedings in May 1991 and again indicated his willingness to give evidence. In fact, he did so in one trial, that of Chung Yuk-lun, and it was submitted that as a result of that evidence Chung Yuk-lun was convicted and sentenced to 19 years' imprisonment. Another defendant, Tang Yuk-tong, changed his plea to one of guilty. It was suggested that as a result of A2's evidence other defendants also changed their pleas to guilty. It was stressed that his pleas came at a very early stage and that he had given very valuable assistance to the police. He also is at risk as a result of his indication of willingness to give evidence and the fact that he gave the police information concerning Ho Tung-shing. This danger is recognised by the fact that he has been detained in the Siu Lam special security unit. It was stressed that A2 was deeply remorseful for the part he had played in these robberies.

21. The 1st and 4th counts were attempted robberies for which sentences of 13 and 14 years were imposed, discounted for the plea of guilty and other factors from starting points of 19 years and 20 years respectively. The 2nd count was robbery, not of a goldsmith shop but of a hotel, and the sentence was 13 years, discounted from 19 years. For all the other robberies, the sentence imposed was one of 20 years' imprisonment, the judge taking a starting point of 28 years and discounting it to that extent.

22. Again we are satisfied that a starting point of 28 years' imprisonment taken by the trial judge was perfectly proper. Most of these robberies were committed at a time when the applicant knew that Ho Tung-shing was carrying a genuine pistol which he was perfectly ready to use and did so in order to effect escape. As a result one man was killed, one is a paraplegic and another was seriously wounded. Vast amounts of property were taken, almost all of which has not been recovered.

23. This court has always declined to lay down any guideline rules as to the discount to be given for a plea of guilty and assistance to the police, as it varies so much in individual cases. Here there was a plea of guilty to all charges at an early stage, valuable information was given to the police and the applicant gave evidence which may well have resulted in the conviction of one other robber and have induced others to plead guilty. A2 was given a discount of approximately 30% in the starting-point sentences.

24. In Lau Yau-yuen, Clough J.A. cited with approval dicta of Dunn, L.J. in R. v. De Havilland (1983) Cr. App. Rep. (s) 109 at 114 to the effect that decisions of the Court of Appeal on sentencing are not binding in the same way as decisions on points of substantive law, due to the infinite variety of circumstances in each case. Here however we consider that despite the aggravating factors present A2 was entitled to a higher discount than he received. We allow the application, treat it as the hearing of the appeal and reduce A2's sentence on counts 2, 3 and 5-14 from 20 years to 15 years' imprisonment.

Choy Sze-man (A3)

25. A3 pleaded guilty to 10 counts of robbery, ranging over a period from 7th July 1989 to 6th June 1991. On each occasion one of the other robbers was Ho Tung-Shing, who was her uncle. On each occasion, A3's role was to act as a decoy in that she would enter a jewellery shop, attract the attention of the staff and get them to unlock a showcase. Her accomplices would then enter, armed with pistol-like objects - in some cases these were in fact clearly genuine pistols - and the showcases would be ransacked. The applicant would act as a lookout while the actual robbery was carried out. In the 2nd count on 29th July 1989 the Chinese Arts and Crafts Company, Whampoa Gardens, Hunghom, was robbed and an innocent passer-by who joined in the chase after the robbers was shot by Ho Tung-shing and is now a paraplegic. In several of the counts the applicant took part in a preliminary meeting between other robbers in which Ho Tung-shing distributed firearms.

26. A3 was 20 years of age at the time the offences were committed and 22 at the date of sentence. She is single and has a minor previous conviction for giving a false address to a pawn-broker.

27. It was put forward in mitigation that she acted as a lookout in each robbery and did not herself use any firearm. She pleaded guilty at the committal proceedings and it was suggested that, in some instances, the evidence against her was by no means overwhelming. It was also very strongly emphasised that she was very much under the influence of Ho Tung-shing, the ring-leader of the gang and who is her uncle. There had been a breakdown of her family relationship and she had left home at the age of 18 to cohabitate with Ho Tung-shing. While it could not be said that she was dominated by Ho Tung-shing, clearly he exercised considerable influence over. She was enjoying a lifestyle considerably different to what she had had at home.

28. It was pointed out that she had made a very full witness statement running to some 44 pages in Chinese in which she gave a very clear picture of the role of each of the other robbers. It was emphasised that she had pleaded guilty at a very early stage and that again she was clearly in some danger from Ho Tung-shing, a very violent man. She not only offered to give evidence but had done so. It was also pointed out that she had received no direct financial benefit from any of the robberies. In her own grounds of appeal, A3 said that she was suffering from lupus erythematosus and this had not been mentioned in mitigation and therefore not taken into account.

29. In passing sentence, Leong, J. said that A3 had been involved in 10 robberies resulting in the loss of very substantial quantities of jewellery and in some of them guns had been actually used. He took into account that she had pleaded guilty at an early stage and had cooperated with the police. He did not directly mention, and this is a cause for complaint raised by Mr. Macrae, that she had actually given evidence for the Crown. Leong, J. took a starting point of 24 years' imprisonment and allowed a discount of 8 years resulting in concurrent sentences of 16 years for each offence. It is the main ground argued by Mr. Macrae that this failed to recognise that A3 had actually given evidence, which meant that the discount of 33% was not sufficient. That discount was appropriate where there were simply a plea of guilty plus cooperation.

30. Again we consider that the starting point taken by the judge was appropriate considering the number of offences and the nature of them. However we think that insufficient discount was given, for the mitigating factors, particularly A3's giving evidence for the Crown. We allow the application, treat that as the hearing of the appeal and reduce A3's sentences on each count from 16 years to 12 years' imprisonment.

Ho Shu-wing (A4)

31. This applicant was convicted on his own plea on 4 counts of robbery and was sentenced on the 1st count to 10 years' imprisonment, on the 2nd count to 13 years and on the 3rd and 4th counts to 16 years' imprisonment, all sentences to be concurrent.

32. The 1st charge involved a robbery together with Ho Tung-shing of a flat in Yan Ping Road, Wanchai on 24th June 1986. A domestic helper was punched and threatened with a knife following which cash and jewellery was taken. The domestic helper was tied up before the robbers left the premises.

33. The 2nd count was the robbery on 17th July 1989 of a hotel in Yaumatei. The applicant and two other men, armed with a pistol-like object and a knife, threatened the manager in his office and robbed him of some $7,000.

34. The 3rd count was the robbery committed with Ho Tung-shing and others at the Chinese Arts and Crafts Company on 29th July 1989. In the course of which the innocent passer-by who took part in the pursuit of the robbers was shot by Ho Tung-shing and made a paraplegic.

35. The 4th robbery was carried out in Ching Brothers Shop in the Mandarin Hotel on 19th March 1991 where a very large amount of jewellery was taken, valued at over HK$6 million, plus HK$250,000 and 3 million Japanese Yen. Again the robbery was effected with the use of a pistol-like object.

36. A4 has previous convictions for membership of a triad society, operating a gambling establishment and theft. He is married and has a daughter. It was put forward in mitigation that in none of the robberies was there any evidence that A4 was actually holding a pistol. But it was not denied that he had taken an active part. Once again, it was argued that this applicant had come under the influence of the arch-villain, Ho Tung-shing, who had been a friend of A4 since childhood. A4 was a heavy gambler and had borrowed money from Ho in order to pay his gambling debts. After the shooting which took place during the robbery referred to in the 3rd count A4 became very sorry for his actions and told Ho that he would not take part in any further robberies. However he then took part in the robbery referred to in the 4th count. He then ceased his criminal activities with Ho and remained out of touch of him until he was arrested. He was the first member of the syndicate to be arrested and made a full statement admitting his role in these offences and giving valuable information to the police about the other members of the syndicate. He also was transferred to the Siu Lam security unit because it was considered that he then became at risk.

37. Again Leong, J. took a starting point of 24 years' imprisonment in view of the number of offences and their nature. He pointed out that the 1st count involved robbery of domestic premises in which persons were assaulted and tied up. Once again, he allowed a discount on the 1st count from 15 years to 10 years, on the 2nd count from 19 years to 13 years and on the 3rd and 4th counts from 24 years to 16 years.

38. Before us, it was emphasised by Mr. Macrae that A4 was the first of the robbers to be arrested and that his cooperation was of considerable assistance to the authorities in tracking down the rest of the gang. It is contended that the discount of 33% was not sufficient under these circumstances.

39. For the reasons already given the starting point taken by the judge was correct and we do not consider that the discount which he gave for the plea of guilty and the cooperation with the authorities was insufficient. A4's application for leave to appeal against sentences is therefore refused.

Forfeiture

40. Leong, J. made an order as regards A2, Chan Kin-chung, forfeiting property which had been found in his home. This was not done in open court but was by a written order made on 24th January 1994 in response to a letter from the Crown. Mr. Macrae submitted that this order, which was for forfeiture and also destruction, was wrong in law and in principle. A2 has filed an affidavit which sets out that the exhibits were in fact his property and details of how he acquired them. However, Mr. Macrae expressed the view that the correct procedure was to apply to Leong, J. to revoke his order for forfeiture and destruction. We were therefore not required to give any decision on this question.