R. v. CHEUNG SHING and Others

IN THE COURT OF APPEAL

1994, No. 534
(Criminal)

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J U D G M E N T

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

1. There are three applicants before us. The first two are men in their late 30's while the third is a man in his early 30's.

2. All three are in person. And they all addressed us with ability and courtesy for which we thank them.

3. On October 6 last year before Leong J, the 1st applicant pleaded guilty to two counts of robbery and one count of rape. He was sentenced on the 18th of that month to 12 years' imprisonment by way of concurrent five-year terms for the robberies and a consecutive seven-year term for the rape.

4. By a notice of application dated October 27 last year, he sought leave to appeal against his sentence.

5. Attached to that notice is a sheet of paper dated 25th of that month in which he sets out certain grounds. Those grounds read:-

"I was given 12 years for robbery and another robbery and rape. Concerning the rape charge, I consider it heavy because I pleaded guilty. The victim needed not give evidence in court and court time was not wasted. Also, I co-operated with the police and was willing to take the risk of testifying in court against co-accused KAN Chi-keung who, as a result, was punished by law and got seven years.

I hope that the Appeal Court Judge will take into account the conviction of the co-accused on my evidence and cut my sentence so that I can return to society early to turn over a new leaf and make amends for my crime by going to church to perform voluntary work to serve the elderly."

6. Following that, he took out an application for leave to appeal against conviction out of time, notwithstanding that he had pleaded guilty. What he was suggesting in support of that was that he had been misled by his then legal advisers into pleading guilty.

7. Subsequently, however, he abandoned his application for leave to appeal against conviction out of time.

8. As to his sentence, he addressed us at some length. And he pointed out, among other things, the terrible impact upon his family of what he has done and of what has happened to him as a result of what he has done.

9. But the problem is this. He said very little to us about the rape. And the rape was a bad one even by the standards of rape, which are always serious.

10. He said that he had committed the robberies in order to save his wife from the clutches of "loan sharks". Even assuming that to be true, the rape could not have been committed for that purpose.

11. The judge carefully considered the appropriate sentence for the 1st applicant. And the result at which he arrived is appropriate.

12. We refuse the 1st applicant leave to appeal against his sentence.

13. Turning now to the 2nd applicant, he faced two counts of robbery, being the ones which the 1st applicant also faced.

14. Having pleaded not guilty to both counts of robbery, he was on October 17 last year convicted by the jury on the first and acquitted by them on the second. Passing sentence on the following day, Leong J sentenced him to seven years' imprisonment.

15. He now seeks leave to appeal against his conviction.

16. His notice of application for such leave, which is dated November 11 last year, sets out this ground:-

"Now I would like to apply for leave to appeal against conviction on the grounds that the trial judge misled the jury."

17. The notice gives no indication of how it is suggested that the judge had misled the jury.

18. But we have recently received a document from the applicant setting out the following as particular to how the judge is said to have misled the jury:-

"1. The trial judge misled the jury:

(A) On the surface, although the trial judge's court address expressed the general legal point of views and regulations, the judge did not give enough balance to some existing question of the case. His partial view was added in favour of the prosecution witness's opinion. This was used to direct the jury and was unfair to the accused.

(B) The trial judge considered (P.W.1) the prosecution witness's inconsistent behaviour as minor mistake. He gave reasonable explanation actively. He did not mention the possible dishonest personal character or the prosecution witness's mistake or its seriousness might be caused. This is extremely unfair to the accused.

2. The trial judge wrongly allowed and accepted the prosecutor to use the so-called "accomplice" witness as the basis of charges against me.

The judge knew that the prosecutor asked the tainted witness to testify for the prosecution out of their own interest. In other words, their motive was for luck and was not good. In addition, their testimonies were confirmed as inconsistent. Witness Cheung Shing had previous record of providing false information. It can prove that they are unreliable and dishonest. The judge should not accept their testimonies or allow them to be the witnesses in this case. This is because their wrong accusation would directly affect the jury's judgment to the whole case and would be extremely unfair to the accused.

19. All of that was expanded upon and added to in the course of an oral presentation by the 2nd applicant.

20. This should be noticed. He was convicted of the robbery in respect of which the evidence against him was from both of the other applicants, both of whom gave accomplice evidence, and from the victim, who identified him as one of the robbers. He was acquitted of the robbery in respect of which the evidence against him was only that of one of the other applicants, the first.

21. There was no lack of balance in the judge's summing-up. Nor was there any error of law.

22. As far as the identification evidence of the victim is concerned, she picked him out at an identification parade, identifying him as the robber who had held a knife. In another identification parade, she wrongly picked out an actor on parade, picking him out as one of the other robbers.

23. Her opportunity to observe a robber with a knife was greater than that of her opportunity to observe the other robbers. The judge was entitled to assist the jury by making that observation. No legitimate complaint can be made about that nor indeed about anything else leading to the 2nd applicant's conviction.

24. We refuse him leave to appeal against his conviction.

25. Turning now to the 3rd applicant, he pleaded guilty to three counts of robbery and not guilty to one count of robbery. The one to which he pleaded not guilty was ordered to be left on the file. His pleas came early. They came on April 22 last year. He was not sentenced until October 18 last year because he gave evidence for the prosecution.

26. Leong J sentenced him to six years' imprisonment by way of concurrent terms of that duration.

27. By a notice of that application dated November 11 last year, he sought leave to appeal against sentence. To that notice he attached a sheet of paper dated the 9th of that month. And in that sheet, he set out these grounds of appeals against sentence:-

"1. D1 CHEUNG Shing admitted two counts of robbery. Sentencing him, the judge took nine years as the starting point and after a reduction of four years, it was five years. For me, ten years was taken as the starting point and after a reduction of four years, it was six years.

2. D2 KAN Chi-keung denied the charge. He was convicted and awarded seven years. Had D2 pleaded guilty, according to the usual High Court one third sentence discount for guilty plea, seven years would be replaced by four years and eight months.

3. I admitted the offence right after my arrest by police. I was co-operative. No court time was wasted. Also, I was willing to attend court as Crown witness.

4. In view of the above three reasons, it was comparatively on the high side for the judge to take 10 years as the starting point in sentencing, and the post-discount 6-year term, compared with that for D2, was unfair to me."

28. We have given this application anxious consideration. And the conclusion to which we have come is this.

29. The starting point was somewhat high. That alone may not have resulted in interference. The discount was somewhat ungenerous. That, too, might not of itself have resulted in interference. After all, there is a limit to the precision which can be achieved in these matters. And there is a range within which a sentencing judge may select the sentence to be passed.

30. But when both factors are taken into consideration, we think it can be said with justification that the sentence was above the appropriate range.

31. Each concurrent term of six years should, in our view, be replaced by concurrent term of five years. So that the total sentence comes down from six years by one year to five years.

32. Treating the application as the appeal itself, we allow the appeal to that extent, and reduce the sentence on the 3rd applicant from six years' imprisonment to five years' imprisonment.