TSE LEE MAN v. R.

1996, No.129
(Criminal)

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H E A D N O T E

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Criminal Law And Procedure

Sentencing - application of totality principle - apportionment of blame in assessment of sentences of co-defendants - discount for information and assistance actually given or promised.

1996, No.129
(Criminal)

IN THE COURT OF APPEAL

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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. The applicant Tse Lee Man was, with three others, charged on several counts of robbery before HH Judge Hawkes in the District Court on 22nd January 1996. He pleaded guilty to three counts.

2. The four persons who together were charged all appear to have been young. The applicant was about 20 years of age at the time; another of the accused was aged 19. One of them, the 3rd defendant, was a female. Their modus operandi was for 3 or all of 4 of them to pick on young people usually shopping in Kowloon and accuse them of bumping into one of them or staring at them or having maltreated one of their friends, and insisting on them going to a nearby staircase or roof on the pretext of sorting out the matter or a claim for compensation. Force was used when necessary to push them upstairs. Their property would then be demanded and taken, and they would finally be told to strip off all their clothes so that these robbers could escape without fear of pursuit.

3. In the first offence, that is the first charge to which the applicant pleaded guilty, two victims were involved; one was man-handled by the applicant who, on that occasion, was accompanied by two of the others; he was robbed of a pair of leather shoes and the other of $400. The applicant was, in respect of that, ultimately sentenced to two years' imprisonment.

4. The second offence to which the applicant pleaded again was carried out by three persons, that is the applicant and two others. They forced three young persons to a 4th floor landing and took $650 from one, $290 from another and also a discman compact disc player, seven compact discs, also a pencil bag and a ballpen. One of the victims was slapped in the face. On this count, the applicant was sentenced to three years.

5. The third offence, the most serious of the three, was the subject of the fourth count. This was committed by all of the four persons together. Two persons were taken to a roof top, $350 was taken and a waistbag from one of them and a watch from another. One of them was kicked in the face and they were threatened with a water-pipe that was lying about. The applicant was sentenced to four years' imprisonment.

6. In sentencing the applicant, the judge, noted that the applicant and the 4th defendant blamed each other for brandishing the water-pipe, although on the agreed facts the applicant was said to have admitted that it was he who had done it. The judge rightly concluded that it mattered not who precisely wielded or brandished the water-pipe, but that it was used in the course of the robbery. He then went on to note that there were positive aspects to the 1st defendant's probation report and said that he "should be given credit for his early plea of guilty and his co-operation with the police and his willingness to give evidence against the co-accused".

7. Having mentioned defence counsel's reference to the mitigating circumstances and his plea for a sentence as lenient as possible the judge went on to say this :

" ... However, these are serious offences, particularly that covered by the 4th charge. A starting point of 5 years' imprisonment could be justified for that offence. Also, as the three offences are separate offences, sentences imposed ought to be consecutive rather than concurrent. Bearing in mind the totality principle, I am of the view that an overall starting point of 6 years' imprisonment or more could be justified in this case.

In all the circumstances, however, the accused is convicted on the 1st, 2nd and 4th charges and is sentenced to 2 years' imprisonment on the 1st charge, 3 years' imprisonment on the 2nd charge, and 4 years' imprisonment on the 4th charge. Bearing in mind the totality principle, I order that all sentences be served concurrently."

It has to be said that that is not the appropriate way the totality principle is to be given effect (see e.g. Thomas' Principles of Sentencing 2nd ed. p.56 et seq; Archbold 1995 vol.1 para.5-166).

8. What the judge should have done was first determine the appropriate individual sentences on each of the offences and then stood back to view the totality i.e. asked himself whether the overall sentence was too heavy or, indeed too light; and having done so then proceeded to produce the ultimate sentence by giving consideration to that totality and to such discount as he would have granted for mitigation, in particular the pleas of guilty (see Attorney General v. Chan Piu Sang and Another AR 1993 No.16 unreported).

9. However that may be, I turn now to mention that the 3rd and the 4th defendants were, in the same case, sentenced by him ultimately to four years' imprisonment each. Neither of them had given assistance; nor had the 4th defendant pleaded early, moreover the timing of his plea suggests that it was prompted by the applicant's intention to give evidence for the Crown. We have to observe that the judge does not appear to have apportioned blame between them and the appellant and the appellant seems to have been left with a sense of grievance, entitling him to seek the intervention of this Court on the disparity of the sentences relative to the circumstances (see R. v. So Hung Hee [1986] HKLR 1049, 1052).

10. Mr Halley, who appears for the applicant, submits that having regard to the pleas of guilty and the assistance that the applicant gave, he should have been allowed a discount of between, if I understood him rightly, 30% to 50%, and that the discount of 30% that the judge gave him from a starting point of six years was inadequate. The assistance that the applicant gave was first of all a statement of some eight pages that he gave to the police immediately after his plea and before the 3rd and the 4th defendants pleaded guilty; and second, turning up at their adjourned trial to give evidence. It must be accepted and Mr Pang, for the Crown, does not seek to dispute that the statement and the applicant's attendance and readiness to give evidence must have influenced at least the 4th defendant's decision to plead guilty.

11. In that regard, the relevant reasons and approach were outlined by the Lord Chief Justice in the R. v. Sivan and others (1988)10 Cr App R(S) 282, 286-287 in the following way (also quoted in Chan Kwan Mau Cr App 512A of 1995, unreported) :

" As has already been indicated when considering the sentences imposed upon the other three, it is now a well established feature of sentencing practice that credit should be given to a defendant in certain circumstances for assistance or information which he has given to the authorities. There is no need to cite cases in respect of that. The cases are legion. It is an area which is fraught with difficulties, as anybody who has practised in this field at the Bar or who has had to decide this type of case, either at trial or on appeal, will know all too well.

First of all it is by no means easy to discover the true facts. Secondly, the defendant himself will not be anxious for his mitigating activities to be aired in public. Indeed, if he thinks there is any danger of publicity attending his efforts he is unlikely to provide the information which he may have available to be provided. That also means that any information which he does impart often has to be conveyed to the court in writing, and sometimes in the privacy of the judge's room. That means, regrettably but unavoidably, there is likely to be a lack of the openness which ought to characterise all aspects of the criminal trial.

Thirdly, it is not easy for the judge to determine exactly to what extent credit should be given for the information provided. Amongst matters to which he will pay regard are the following: the nature and effect of the information imparted - did it relate to trivial or serious offences? Was the information successful, bringing to justice persons who would not otherwise have been brought to justice, because that is one of the ways, as was pointed out in argument, of testing the veracity and accuracy of the information which has been given? Next, the degree of assistance which has been provided: was the defendant, for example, prepared, as Greenfield was prepared in this case, to give evidence if necessary in order to bring home the information which he had provided and to assist in the conviction of an offender? Also, again as illustrated in this case, the judge must take into account the degree of risk to which the defendant has, by his actions, exposed himself and his family.

Within those limits, necessarily very broadly, the judge must bring himself to tailor the sentence so as to punish the defendant, but at the same time reward him as far as possible for the help he has given and - this is as important as anything else - in order to demonstrate to offenders that it is worth their while to disclose the criminal activities of others for the benefit of law-abiding public in general."

12. Some discount should accordingly have been given for the information provided and the assistance actually given.

13. Mr Pang does not resist that submission, but what he says is that the discount to be given is a matter of degree and that this was not an exceptional case. He refers in the latter respect to Ng Hon Kit [1991]1 HKLR 56 at p.60 where the Court said :

" It is our view that, other than in exceptional cases, a court, when considering the discount to be given to an offender who has co-operated with the authorities and who has promised to give evidence against other offenders, should confine itself to what has occurred up to the date of the hearing and should not give credit for a promise to give evidence. Credit should be given for what an applicant has actually done and not for what he promises to do. Genuine co-operation and the giving of reliable information may be worthy of credit but they must be divorced from an unfulfilled promise to give evidence. Where such a promise is given, the hearing of the appeal should, if it is practicable, be postponed until after the trial of the other offender.

The present case is, in our view, an exceptional one. We are satisfied that credit must be given not only for the co-operation with the authorities, which included giving information that led to the arrest of the three alleged syndicate heads and another member of the syndicate and the giving of evidence against the latter, but also for the undertaking to give evidence against the alleged heads. We consider it proper to give some weight to the last consideration both because the applicants demonstrated their good faith, as regards the giving of evidence, by actually giving evidence against the other syndicate member and because their undertaking to give further evidence was frustrated, through no fault of theirs, when the three absconded while on police bail."

The burden of Mr Pang's point was that the assistance was provided very late and was limited in nature. However that may be, we think that clearly assistance was given in the way already mentioned, that the applicant's good faith was amply demonstrated, and that his offer to give evidence was frustrated by the co-defendants pleading guilty (ironically, in the case of at least one, because the applicant pleaded guilty, agreed to give evidence and turned up to do so).

14. The discount the applicant was given in the reduction from 6 to 4 years' imprisonment was the usual 30% allowed in respect of bare pleas of guilty. Moreover the 3rd and 4th co-defendants, who also pleaded guilty but in less favourable circumstances and did not provide assistance, received the same discount.

15. It follows that, although he said the applicant should be given credit for his co-operation with the police and willingness to give evidence, the judge in the event failed to give any discount for those matters. An additional discount should have been given. Having considered all the circumstances, this, we think, should be an additional 9 months, bringing up the total discount to between 40% and 50%. Accordingly, we reduce the sentence from 4 years on the fourth count to 3 years and 3 months. We order accordingly.