R. v. CHEUNG HON CHUNG

IN THE COURT OF APPEAL

1995, No. 84

(Criminal)

- Headnote-

Sentencing - Assertions by counsel in mitigation are not established facts - Sentencing judge has no duty to indicate to counsel that he does not accept certain factual assertions and afford counsel the opportunity to call evidence. Gross v O'Toole [1982] 4 Cr. App. R(S) 283 followed.

IN THE COURT OF APPEAL

1995, No. 84

(Criminal)

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J U D G M E N T

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Litton, V-P giving the judgment of the Court:

1. This is an application for leave to appeal against sentence.

2. The applicant pleaded guilty before Deputy Judge Pang in the High Court on 24 October 1994 on one count of robbery, contrary to s.10 of the Theft Ordinance, and was sentenced to eight years' imprisonment. He was 24 years of age and had a clear record.

3. The robbery occurred on the morning of 31 August 1993 at the Tin King Estate, Tuen Mun, when a couple, a husband and wife, were robbed of large sums of money, in various currencies, totalling HK$7.2 million in value.

4. The male victim, Tsai Hai-chen, was a foreign-exchange dealer. Monday 30 August, the day before the robbery, was a public holiday and Tsai had large sums of money at home. On Tuesday 31 August, he left his flat at Tin King Estate with his wife, at about 7:00 am, carrying the cash in a travelling bag, intending to take the money to the bank when it opened for business. His wife carried a handbag, containing $850,000 and another travelling bag containing a pillow and a blanket used as a decoy.

5. The circumstances of the robbery, as admitted by counsel on the applicant's behalf in a signed statement, was to this effect :

(i) As the couple were about to get out of the lift on the 9th Floor they were confronted by the applicant and another man. The applicant was armed with an axe and the other man was armed with a pistol.

(ii) The applicant pushed Mrs Tsai to the ground. Tsai moved forward and the applicant grabbed the strap of the bag he was carrying. Tsai resisted and the applicant punched him in the face. There was a struggle and Mr Tsai was shot in the right thigh by the other robber. Tsai then released his grip on the bag which the applicant seized. The other robber grabbed the other two bags. They made their escape by motor-cycle.

6. The applicant was arrested on 17 November 1993. Although he denied any involvement in the robbery at his first interview, later-on he changed his mind and made a full confession of guilt; he also gave details to the police of how the mastermind behind the whole criminal venture, a man named Ng Wai-man, had arranged for the robbery to be committed. The cautioned statements were not produced in evidence before the judge but the effect of some of the applicant's statements was reproduced in the admitted facts. Of relevance is the following passage :

" On 30 August 1993, Ng contacted [the applicant] again and introduced him to another man who was to be his partner in the robbery. That man who shot Tsai is still at large.

The following morning before the robbery Ng gave [the applicant] an axe and the pistol to the other man. Ng stated that the gun was an imitation one for scaring people."

7. The applicant received a total of $550,000 as a result of the robbery. Mr Tsai was admitted to hospital after he was shot. The bullet was extracted from his thigh. He underwent a second operation on 4 September 1993. Following his discharge from hospital he was put on oral medication for a period of about 6 months.

8. What has been stated above were the facts put before the judge, for the purposes of mitigation. No other facts were established.

9. Having regard to the submissions which have been made to us by Mr Grounds, counsel for the applicant, it is necessary to recite what then took place before the judge.

10. First, Crown counsel (presumably with Mr Grounds' agreement) put before the judge an antecedent report concerning the applicant. There was also a probation report before the judge.

11. Secondly, Mr Grounds then proceeded to make a speech in mitigation. It must be emphasised at the outset, having regard to some of the submissions put to this court, that an assertion of fact in the course of counsel's speech is no more than that. It is not evidence. Certain facts may of course be so self-evident, and flow so logically from what has already been formally admitted pursuant to s.65C of the Criminal Procedure Ordinance, that they can be accepted by the judge as such. Other facts, such as the family circumstances of the accused not covered by the antecedent statement, but inherently non-controversial, and not contradicted by anything in the antecedent statement, are often asserted through counsel and accepted by the sentencing judge as established facts for the purposes of sentence. But that is simply a convenient and expeditious way of dealing with the sentencing : it does not change the rules of evidence.

12. In the course of his submission, Mr Grounds stated that the axe was "never brandished in front of the alleged victims" : this was a fair statement, as the admitted facts did not go beyond saying that the defendant was "armed with an axe". However, Mr Grounds went on to tell the judge that it was "kept under the clothing of the defendant". This went beyond the admitted facts; it is not wholly consistent with the admission that the defendant went "armed with an axe" and the judge was not bound to accept that assertion by counsel as a fact. Moreover, it would be reasonable to assume that someone who went to commit a robbery "armed with an axe" would, at least in some circumstances, be prepared to use it.

13. Mr Grounds then referred to Count 2 of the indictment - which was not proceeded with in light of the guilty plea on Count 1 - which charged the applicant with joint possession of the gun with the other robber. As to this Mr Grounds stated as follows :

"... In my submission, from the evidence that arose at the trial, from my understanding of it and from the witness' statement that the defendant made about this matter that he understood this to be an imitation firearm and believed the gun was an imitation, and indeed had asked about this matter prior when it was first produced on the morning of the robbery itself."

The reference to the "evidence that arose at the trial" was a reference to the evidence given in the course of Ng's trial, when the applicant was the principal witness. Mr Grounds' assertion of belief that the gun was an imitation one was an assertion of the applicant's belief which, again, did not necessarily flow from the admitted facts. In the admitted facts, it was no more than this : that Ng had told the applicant, on the morning of the robbery, that "the gun was an imitation one for scaring people". The circumstances under which Ng made this statement were never explored, since the prosecution did not proceed with Count 2, the charge of joint possession of the gun.

14. In this court, counsel submits that if the judge did not accept the applicant's "mitigation" to the effect that the applicant "believed the firearm to be an imitation firearm", the judge was bound to so indicate to counsel, and to afford counsel an opportunity to call the applicant to give evidence. We would firmly reject this submission. This is directly contrary to Gross v. O'Toole [1982] 4 Cr. App. R(S) 283 where the main issue was whether the appellant had offered his services gratuitously as a driver at Heathrow Airport. In mitigation, the appellant's solicitor contended that the services were gratuitous but no evidence was called to that effect. It was merely asserted as a fact. Immediately before announcing their sentence, the magistrates stated that they did not accept the mitigation. They had given no earlier indication of their scepticism. On appeal, it was argued that the magistrates should not have rejected a substantial part of the mitigation without first warning the defence of their provisional view and giving an opportunity for affirmative evidence to be called. Although the appeal was allowed on other grounds, the Divisional Court rejected the argument, holding that whether to call evidence or rely solely on his own submissions was a decision for the defence advocate.

15. In this court, counsel's main submission is to the effect that the judge should have proceeded on the basis that the applicant believed the gun to have been an imitation one : and on that basis the starting point should only have been 12 years, and not the 16 years selected by the judge. In our judgment, this goes far beyond the admitted facts. Whilst it is common ground that Ng stated on the morning of the robbery that the gun was an imitation one "for scaring people", were the circumstances such that the applicant reasonably believed what Ng said? Did he examine the gun? If not, why not?

16. In our judgment, the basis for impeaching the judge's approach has not been made out.

17. The question still remains : was the starting point of 16 years justified? This was the same term which Ng, the mastermind behind the robbery and the person who had supplied the gun and the axe, had attracted after trial. Normally, the person who masterminds a criminal enterprise, and produces the means of execution, would attract a higher sentence than the persons who carried it out. Everything which happened, including the possibility of the male victim being shot, must have been foreseen by Ng. But it was Deputy Judge Pang himself who had dealt earlier with Ng, who ended with a sentence of sixteen years - because, presumably, there was simply nothing to be said in mitigation on his behalf.

18. It must not however be overlooked that this court has, in the recent past, emphasised the importance of severe deterrent sentences for armed robberies involving firearms : see, for instance, R. v. Wong Sui-ming Cr. App. No.307 of 1992 (19 August 1993) at page 4 and R. v. Hui Fuk-ming Cr. App. No.513 of 1992 (14 January 1994) at page 8. In the latter case the court said :

"Regrettably, the use of firearms both genuine and imitation, has become far too prevalent in Hong Kong in recent times. Such conduct called for the imposition of heavy sentences, and the general level of sentencing has increased accordingly."

19. This applicant embarked upon a robbery armed with an axe. In the course of that robbery his partner in crime shot and wounded one of the victims. Those objectively were the facts. The judge was plainly entitled to take them into account.

20. The judge gave a generous discount to the applicant for his co-operation with the police and ended with 8 years' imprisonment. The sentence is not manifestly excessive, nor has the judge erred in his approach.

21. The application is dismissed.