R. v. NGAN CHIU MAN

IN THE COURT OF APPEAL

1993, No. 367
(Criminal)

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J U D G M E N T

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Hon Yang, CJ :

1. This is an application for leave to appeal against sentence. After hearing submissions we allowed the application, treated the hearing of the application as hearing of the appeal and allowed the appeal. We said that we would reduce our judgment into writing, which we now do.

2. The applicant was convicted on his own pleas to (1) conspiracy to commit forcible detention, for which he was sentenced to six years' imprisonment; (2) attempt to commit forcible detention, for which he was sentenced to seven years' imprisonment; and (3) wounding with intent, for which he was sentenced to eight years' imprisonment. The sentences were ordered to run concurrently.

3. The facts were as follows.

4. In August 1988, two men, C A Wong and M W Wong, entered into a conspiracy to kidnap the son of a well-known horse trainer in order to secure racing tips from the victim's father. As the conspirators found it difficult to kidnap their targeted person, they considered an alternative target as victim, namely, Casper Fownes ("Casper"), the son of another horse trainer. On 29 December 1988, at the request of C A Wong and another conspirator W W Cheung (M W Wong having withdrawn from the conspiracy in October 1988), the applicant rented premises at Ha Tsuen, where Casper was to have been detained after the kidnap.

5. Sometime after 2 p.m. on 20 January 1989, whilst Casper was driving along a slip-road towards the Jockey Club at Shatin, his car was hit from behind by another vehicle causing a jolt. Casper stopped by the side of the road and alighted from his car to check what had happened. The other vehicle stopped about ten feet behind him, and C A Wong, W W Cheung and the applicant got out of the other car. There was a brief exchange of words between Casper and W W Cheung, who apologised profusely. As Casper was about to return to his car, he saw W W Cheung pull out a knife. Casper lashed out and punched C A Wong who was closest to him; he then ran up a slope, followed by W W Cheung and the applicant. The two men caught hold of Casper and a struggle ensued, during which Casper was stabbed. The attack stopped when yet another car drew up and Casper's three attackers drove off. Upon being admitted into hospital, Casper was found to have a number of stab and other wounds, some of which were serious. He has been left with residual nerve damage in the right thigh.

6. W W Cheung was subsequently convicted after trial for the conspiracy to commit forcible detention, the attempt and the wounding, and sentenced to concurrent terms of five years' imprisonment on each count. At the same trial, C A Wong was also convicted after trial and sentenced to concurrent terms of seven years' imprisonment on each of the three similar counts.

7. The applicant absconded on 20 January 1989 and went to China. It was not until 24 February 1993 that he returned to Hong Kong and surrendered himself to the authorities. He pleaded guilty before the magistrate and was committed for sentence before Saied, J, who imposed the sentences specified above.

8. In his reasons for sentence, the learned judge observed that the sentences imposed earlier on W W Cheung and C A Wong were lenient. He was clearly correct when he stated that those sentences in no way bound him. We would not be disposed to disturb these sentences simply because they were higher than those imposed on the applicant's accomplices who, in contrast to the applicant, entered pleas of not guilty. This court made it plain in R. v. So Hung-lee [1986] HKLR 1049 that where different sentences were passed on different occasions by different judges on different defendants for the same offences, then the only consideration would be whether the sentence passed on the applicant was appropriate.

9. As the judge said in the court below, this was a well-planned conspiracy and the attempt to kidnap was equally daring. In adopting a starting point of eight years on the first count, nine years on the second count and ten years on the third count, the judge had clearly taken a serious view having regard to the facts of the case. Mr Macrae makes no complaint about those starting points.

10. The complaint here is that not sufficient discount was given for the applicant's ready pleas of guilty at the earliest opportunity. Only "a little bit of credit" was given for his pleas, and the judge noted that the pleas were "rather belated". He went on to say : -

" The sincerity of this defendant in surrendering himself and pleading guilty is to be seen from the fact that soon after this incident he absconded. The fact that during the time he has been on the run he has been looking over his shoulder doesn't entitle him to any clemency.

The only mitigating factor that I can see is his rather belated plea of guilty. I say "belated" because it is only now that he came out of hiding and surrendered, and it seems to me that he took that course of action, realizing full well that the evidence against him was strong."

11. It is these last six words quoted above which caused us concern. We accept that at the time he surrendered himself to the police the applicant would have known that the only potential admissible evidence against him was that of Casper, who might not have been able to identify him as one of his attackers after a lapse of four years and six months from the date of the offences.

12. That being so, we think it was inaccurate to say that the applicant realised full well that the evidence against him was strong. A greater discount should have been made in the sentences passed.

13. Our attention has been drawn to the case of The Queen v. WONG Ping-yu and WONG Ping-fai (1987) No. 16, Court of Appeal (Criminal) (unreported), where Roberts, CJ, suggested that an appropriate discount, where there was a plea at the first practical stage, i.e., when the accused was brought before a magistrate, would be approximately 25 percent.

14. On the principle enunciated in that authority, and giving the appropriate discount in round figures rather than indulging in precise arithmetics, we are of the view that the proper course in this case, having regard to all the circumstances, including the strength of the evidence against the applicant as he knew it, would be to reduce the sentences to imprisonment for five years on the first count, six years for the second count, and seven years for the third count - the sentences to run concurrently, and we so ordered.