HKSAR v. CHAN WAI AND OTHERS

CACC285/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.285 OF 2004

(ON APPEAL FROM HCCC NO.289 OF 2003)

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REASONS   FOR   JUDGMENT

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Lunn J (giving the reasons for the judgment of the court) :

1. At the hearing of the applications we dismissed all the applications save for that of the 6^th defendant, whose application for leave to appeal against sentence we allowed and treating it as the hearing of the appeal we ordered the sentence imposed in respect of count 2 to be reduced to seven years and two months’ imprisonment.  We indicated that we would hand down our reasons in due course.  This we do now.

Background

2. The applicants, to whom we will refer in this judgment by reference to their numerical designation as defendants in the lower court, were tried together with two other men on two counts of robbery contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210.  The 6^th defendant, together with Yip Fung, was charged in the 1^st count with the robbery of a person on 13 June 2003 at the Waterfront Park, Tai Po.  Six defendants, not including Yip Fung, were charged in the 2^nd count with a robbery of nine people on 4 July 2003 on the hillside of Sha Lo Tung, Tai Po.  On arraignment the 6^th defendant pleaded guilty to both counts whilst the 4^th defendant pleaded guilty to count 2.  On the following day the 5^th defendant pleaded guilty to the original count 2 on an amended indictment in which the first count had been severed.  The trial proceeded against the 1^stand 2^nd defendants together with the former 3^rd defendant.  By the verdicts of the jury the 1^st and 2^nd defendants were convicted, and the former 3^rd defendant was acquitted, of the robbery committed on 4 July 2003.

The sentences

3. Deputy Judge Wright sentenced the 1^st and 2^nd defendants to 12 years’ imprisonment and the 4^th, 5^th and 6^th defendants to eight years’ imprisonment in respect of the former 2^nd count on the indictment.  In addition, the 6^th defendant was sentenced to four years and eight months’ imprisonment in respect of the 1^st count.  Two years of that sentence was ordered to be served consecutively to the sentence of eight years’ imprisonment imposed in respect of the other robbery.  The total sentence of imprisonment imposed upon the 6^th defendant was 10 years.

The applications

4. The 1^st and 2^nd defendants seek leave to appeal against their convictions.  The 1^st, 5^th and 6^th defendants seek leave to appeal against the sentences imposed upon them.  The 5^th defendant seeks an extension of time to make that application.  He does so because his notice of application for leave to appeal against sentence was not filed until 2 September 2004, he having been sentenced on 11 June 2004.

The prosecution case in respect of the robbery of 4 July 2003

5. The prosecution called evidence from the nine victims of this robbery, all of whom were schoolteachers, six females and three males. They were all colleagues.  They were out hiking in the countryside.  As they were walking down a path at 4:45 p.m. on that bright sunny afternoon on the hillside of the Sha Lo Tung they were confronted by six men, one of whom was carrying what appeared to be a pistol.  The others were armed with a variety of weapons, some held a sickle, others a chopper or a knife.  The robbers stripped the victims of the valuables described in the Particulars of Offence in the count and then decamped.  The 1^st and 2^nd defendants were arrested separately in the late evening of the 4 July, the former on a public light bus in Sha Tau Kok Road and the latter on foot in San Uk Chai Tsuen.  None of the stolen property was recovered from the 1^st and 2^nd defendants or the former 3^rd defendant.  At issue in the trial was the identification of the 1^stand 2^nd defendants and the former 3^rd defendant.  Each of them had been identified at identification parades held on 6 July 2003 by one of the victims, in each case by a different victim.  In the case of the 2^nd defendant the identifying victim testified that the 2^nd defendant had removed personal property from that victim.

The defendants’ case at trial

6. Both the 1^st and 2^nd defendants testified at trial.  They denied being parties to the robbery.  The 1^st defendant called as witnesses on his behalf the 6^th defendant and Yip Fung.  The 1^st defendant and Yip Fung testified that they had entered Hong Kong illegally on the evening of 3 July and early-morning of 4 July 2003 by a combination of walking and swimming.  They did so in the hope of obtaining employment in Hong Kong.  They spent the daylight hours resting on a hillside and when darkness fell took a public light bus destined for Sheung Shui.  Whilst passengers on that bus they had been arrested.  The 6^th defendant testified that he had been one of the robbers in the robbery of 4 July 2003 and that he had been convicted of that offence following his plea of guilty.  He testified that he had committed that robbery with the 4^th and 5^th defendants together with three other men whose names were unknown to him, but was categoric that neither the 1^st nor 2^nd defendants or the former 3^rd defendant were parties to the robbery.  He had met them only after they had all been arrested.  Of the proceeds of the robbery he testified that they had all been given to one of the unknown robbers, who had indicated that they would be shared out after all the robbers had returned to the Mainland.

7. The 2^nd defendant testified that he had arrived in Hong Kong illegally some two days prior to his arrest.  He said that this was his third illegal entry into Hong Kong in search of work.  On the earlier occasions he had been apprehended and repatriated.  In the two days he had been in Hong Kong he had done nothing to find a job, but had simply walked, rested and slept.  Prior to his arrest he had not known either the 1^st or 2^nd defendants.

The 1^st and 2^nd defendants’ grounds of appeal against conviction

8. In their self-drafted grounds of appeal against conviction both the 1^st and 2^nd defendants assert that they did not take part in the robbery of which they were convicted by the jury.  The 1^st defendant articulates in terms the issue that in reality is the basis of the grounds of appeal of each of them, namely that the identifying eye-witness was mistaken in identifying him as one of the robbers.  In what he describes as a supplement to his “Skeleton Submissions” the 1^st defendant alleges that the prosecution failed to disclose to the defence as unused material witness statements taken from three fellow illegal immigrants who had been arrested with him and who were material witnesses to support his alibi at trial.  He contends that in those witness statements he and the other men arrested with him had described their entry into and subsequent movements in Hong Kong.  These statements were, he says, taken at Sheung Shui police station.  The other three men were Tsui Bun Kit, Chan Siu Kong and Yip Fung.  The latter was called as a witness in the case of the 1^st defendant at trial.  Further, he acknowledges that Chan was in Hong Kong until shortly before the trial and could have been made available to be called as a witness, but a decision was made by his lawyers not to call him because he had given a statement to the police which was contrary to the case of the 1^st defendant.  By contrast Tsui was repatriated to the Mainland on 8 July 2003 and not available to be called in his defence.  He asks for evidence to be taken from Chan and Tsui in the Mainland and that he be permitted to adduce it before this court.

The summing-up

9. At the outset of his summing-up the Judge directed the jury that the issue in the case of all three defendants in the trial was whether or not the respective identifying witness had made the correct identification of the particular defendant as one of the robbers.  Having directed the jury that they must consider the case against each defendant separately he went on to say :

“This is a matter in which the identification of the Accused by three witnesses is crucial: I shall direct you further on specific issues concerning identification shortly but it is important that you assess the evidence against each Accused individually.  If you are satisfied by the evidence against one Accused you must still consider the evidence against each of the other Accused.  Simply because you are satisfied that identification in respect of one Accused is correct does not entitle you to assume that identification of any other Accused is also correct.”

10. Of the issue of alibi the judge directed the jury :

“As the prosecution has to prove the guilt of each Accused so that you are sure of it, no Accused has to prove he was elsewhere at the time.  On the contrary, the prosecution must disprove the alibi.  Even if you conclude that the alibi was false, that does not of itself entitle you to convicted the Accused.  The prosecution must make you sure of his guilt.

The mere fact that you conclude that an Accused has not told you the truth about his whereabouts at the time of the offence does not of itself proved that he was where the identifying witness says he was.  Bear in mind that an alibi is sometimes invented to bolster a genuine defence.”

11. Of the vital importance of the evidence of identification the judge directed the jury :

“This is a trial where the case against each Accused depends wholly on the correctness of one identification of him which the defence alleges to be mistaken.  There is no evidence before you which supports the accuracy of any of the identifications.”

12. In those circumstances, the Judge went on to give the jury a specific warning of the dangers of relying upon identification evidence in convicting an accused and identified the factors that the jury should consider in their examination of the identification evidence.  He said :

“I must therefore warn you of the special need for caution before convicting an Accused in reliance on the evidence of identification.  That is because it is possible for an honest witness to make a mistaken in identification.  There have been wrongful convictions in the past as a result of such mistakes.  And apparently convincing witness can be mistaken.

You should therefore examine carefully the circumstances in which the identification by each witness was made.  How long did he have the person he says was the defendant under observation?  At what distance?  In what light?  Did anything interfere with the observation?  Had the witness ever seen the person he observed before?  How long was it between the original observation and the identification to the police?  Is there any marked difference between the description given by the witness to the police when he was first seen by them and the appearance of the Accused?”

13. In assisting the jury address those questions to the evidence the judge reminded the jury of evidence that was common to the case of all three defendants at trial and then addressed the evidence of each identifying witness of the respective defendant.  The jury were reminded that the victims of the robbery had been walking in single file down the path on the hillside on a bright sunny afternoon in July when they encountered a group of six men walking on the path towards them.  From that evidence, the Judge invited the jury to consider whether or not they were satisfied that the lighting conditions were good for all the witnesses.  In the vanguard of the victims was Dai Yan Tai (PW8), the witness who identified the 1^st defendant.  It was he whom the robbers confronted first.  It followed that the robbery had come as a complete surprise to the victims. PW8 was manhandled by one or more of the robbers and, at one stage, fell to the ground.  The robbers removed valuable possessions from each of the victims and then scattered about their other personal possessions before making good their escape.

14. The judge reminded the jury that at the identification parades, in which the three defendants participated, held two days later six of the participating victim witnesses had been unable to make any identification and invited them to consider whether or not that was indicative of the difficulty of the conditions in which the observations were made.  Further, he reminded them that one witness had made a wrong identification, picking out an actor.

15. Of the circumstances in which PW8 came to identify the 1^st defendant the judge reminded the jury that the witness had said that it was a very short period of time after he had first seen the group of men before he was pounced upon by the 1^st defendant, whilst another man brandished a knife at him.  He had seen a sickle, a knife and a gun being carried by other robbers he had stepped backwards and injured himself on his left elbow as he bumped into some rocks.  He was unable to give an estimate of the time the robbers were present.  In identifying the 1^st defendant as the one who had pounced upon him he said that he did so by his facial features, they having been face to face with one another within a distance of two metres for a period of about a minute.  The judge reminded the jury that in an out-of-court statement to the police the witness had said that both his immediate assailants had been armed, whilst in his evidence he said that the 1^st defendant was not armed.  The judge reminded the jury to consider the fact that the 1^st defendant was a complete stranger to the witness and that, undoubtedly, the events were traumatic.

16. Of the identification evidence in respect of the 2^nd defendant the judge reminded the jury that Au KwokWai (PW6) had testified that he had seen the group of men dashing towards his group and had observed men brandishing a pistol, a knife and a sickle.  He felt endangered.  He saw PW8 being threatened with a knife.  He identified the 2^nd defendant as the robber who had held a knife and who had taken away his wallet.  Of the opportunity that the witness had to observe the 2^nd defendant the judge reminded the jury that the witness had testified that he had an unobstructed face to face view of the 2^nd defendant, at a distance of a little over a metre for about three minutes.  He identified the 2^nd defendant by his facial features.  He estimated that the robbery had lasted about 10 minutes in all.  The judge reminded the jury of the discrepancy between the witness’s out of court statement to the police, in which he had described the clothing of the two robbers who dealt with him personally, and his evidence in court in respect of their clothing.  The witness accepted that he might have made a mistake in his testimony in respect of the clothing worn by the 2^nd defendant, but said that he was not mistaken as to his face.                           

The submissions of the respondent

17. Mr Leung submits that the judge had given a correct and detailed direction to the jury in respect of the identification evidence of the 1^st and 2^nd defendants.  In his response to the matters sought to be argued by the 1^st defendant by way of supplement Mr Leung informs the court that no witness statements are taken from persons arrested as being illegal immigrants unless they were found to be connected with the commission of criminal offences other than their illegal entry into Hong Kong.  He accepts that the prospective witness Tsui had been repatriated to the Mainland and was not available to be called as a witness in the defence case at trial.  However, he invites this court to note that Yip Fung was called as a defence witness at trial and that Chan would have been made available for the defence to call him as a witness had the defence determined not to do so.  He submits that the 1^st defendant was not prejudiced and there was no unfairness at his trial.

Conclusions

18. We are satisfied that in his summing-up the judge gave the jury accurate and comprehensive directions in respect of the issue of identification in accordance with the guidance of the judgment of the court of appeal of England and Wales in R. v. Turnbull [1976 ] 63 Cr.App.R. 134.  He reminded them of the evidence with great care and in considerable detail, pointing out to them the matters that might undermine the reliability of the identification evidence.  That the jury abided by those directions and, in particular, the direction that they consider the cases of each defendant separately is evidenced by the fact that the 3^rd defendant was acquitted.  Given that the 1^st defendant did call Yip Fung as a witness at trial and decided not call Chan we are satisfied that the absence from Hong Kong of Tsui did not result in unfairness to the 1^st defendant such that he did not have a fair trial.  There is no merit in the proposed grounds of appeal against conviction.  Accordingly, the applications of the 1^st and 2^nd defendants for leave to appeal against conviction were dismissed.

The reasons for sentence

19. The judge noted that the robbers had brandished an array of weapons including what appeared to be a pistol, a sickle or sickles, a knife or knives and a chopper or choppers.  He determined that thereby all of the robbers took advantage of the intimidation of the victims by the display of weapons to carry out the robbery.  Accordingly, he treated all the robbers as equal participants.  He noted that the 1^st and 2^nd defendants had no criminal convictions.  Citing the judgment of this court in the Secretary for Justice v. Li Man Biu and Others, CAAR4/2000, he stated that he took a starting point for sentence in respect of the robbery of 4 July 2003 (Count 2) of 12 years’ imprisonment.  The judge made specific reference to a passage in the judgment of this court delivered by Stuart-Moore Ag CJHC :

“It has long been the policy of the courts to put offences of the kind where firearms, real or imitation, are used in an extremely grave category and to mark the gravity of those offences by deterrent sentences.  When an imitation firearm is used to frighten victims in the furtherance of robbery as it was in the present case, as opposed merely to being carried for some unlawful purpose, or carried during the course of an actual robberythis will inevitably be an aggravating factor.  In Yu Tai Wing [1995] 1 HKC 837, an overall starting point of 10 years’ imprisonment was considered appropriate where an opportunist robber embarked on his enterprise alone and in a public place causing no injury to his victim.  In Wong Chi Fai CACC 280/1996 (unreported), a twelve-year starting point was described as unobjectionable where two robbers using an imitation firearm and a long knife between them, had tied up their victims in the course of robbery.”

20. The judge acknowledged in terms that minimal violence had been used during the robbery and that such injury as was sustained was minor.  When confronted by the robbers PW8 had stepped backwards bumping into a rock as he did and, as was admitted in the Admitted Facts, sustained redness and swelling on his left arm and an abrasion on his left elbow. Understandably, he concluded that the robbery must have been a terrifying experience for all the victims.

The 1^st and 2^nd defendants

21. The judge determined that having been convicted after trial neither the 1^st nor 2^nd defendants was entitled to any discount from the starting point for sentence.  Accordingly, he imposed upon each of them a sentence of 12 years’ imprisonment.

The 5^th defendant

22. On the second day of the trial the 5^th defendant pleaded guilty to count 2.  In the Summary of Facts accepted by the 5^th defendant it was accepted that he was one of the robbers and that between them in the course of the robbery the robbers had held choppers, sickles and a pistol-like object.  Having regard to the fact of the plea of guilty of the 5^th defendant the judge stated that he discounted the starting point for sentence by one third.  Accordingly, he imposed a sentence of eight years’ imprisonment.

The 6^th defendant

23. The 6^th defendant had pleaded guilty on arraignment to both counts of robbery set out in the indictment.  In the Summary of Facts the 6^th defendant accepted, in respect of the robbery of 4 July 2003 (Count 2),  he had removed a necklace and mobile telephone from one of the victims, which property had been found upon him when he was arrested in the early hours of the morning of 5 July 2003.

24. In respect of the robbery of 13 June 2003 (Count 1), he accepted that he and another man had robbed a man and his 18-year-old girlfriend at about 2:30 a.m. whilst they were walking in the Waterfront Park, Tai Po.  The 6^th defendant grasped the male victim’s neck in an armlock, whilst the other man held a sickle.  In response to their demands for money the male victim handed over $380.  The 6^th defendant removed a gold necklace from the male victim and took his mobile telephone.  The male victim suffered a laceration to his ear from the sickle. 

25. The judge noted that he had :

“… informed the prosecuting authorities prior to the trial that he would be willing to make a statement.  He did so.  The prosecution declined to call him as a witness, although as a result of that statement the 4^th and 5^th accused entered their pleas. He was instead called by the 1st Accused as a witness: his testimony to the effect that neither the 1^st nor 2^nd Accused had been present at the scene at the time of the robbery was not accepted by the jury.”

26. In those circumstances, the judge stated that the discount he allowed the 6^th defendant from the starting point for sentence was “the full one third discount but no more”.  Taking a starting point of 12 years’ imprisonment, he sentenced this defendant to a term of eight years’ imprisonment for the offence of 4 July.

27. The judge stated that the guidelines set out in Mo Kwong Sang were appropriate to the circumstances of the commission of the robbery of 13 June 2003.  He took a starting point of seven years imprisonment, which he discounted by one third for the 6^th defendant’s plea of guilty.  Accordingly, he imposed a sentence of four years and eight months imprisonment for this offence.  Having regard to the principle of totality the judge determined that the appropriate sentence to be imposed upon the 6^th defendant was 10 years’ imprisonment.  Two years’ imprisonment on the sentence imposed upon this Count were ordered to be served consecutively to the sentence of eight years’ imprisonment imposed in respect of the other robbery.

Grounds of appeal against sentence

The 1^st and 5^th defendants

28. The 1^st defendant contends in his grounds of appeal simply “... that the sentence was too heavy.”  The 5^th defendant complains that he was sentenced by the judge for participating in an “armed robbery”, on the basis of the possession by one of the robbers of what appeared to be a pistol.  He asserts in his notice of application for leave to appeal against sentence that whilst he held a knife during the robbery he did not know before the robbery that one of his fellow robbers possessed what appeared to be a gun nor that the 6^th defendant would bring a gun to the robbery.

The 6^th defendant

29. Mr Donald on behalf of the 6^th defendant submits that in determining that the discount to which of the 6^th defendant was entitled, following his pleas of guilty, was only one third from the starting point taken for sentence the judge erred in failing to take into account or to give credit to the 6^th defendant for his assistance to the prosecution by :

(i)    making a non-prejudicial witness statement in which he admitted being one of the robbers together with the 4^th and 5^th defendants, in the robbery of 4 July 2003,in consequence of which the 4^thand 5^th defendant pleaded guilty; and

(ii)    offering to be a prosecution witness.

30. Mr Donald draws the attention of the court to the finding by the judge in respect of the non-prejudicial statement of the 6^th defendant that the prosecution had declined to call the 6^th defendant as a witness for the prosecution :

“… as a result of that statement the 4^th and 5^th Accused entered their pleas.”

31. He submits that in cases of serious crime it is well settled in law that where an accused gives his assistance which is of some value to the prosecution it is in the public interest that this should be taken into account and reflected by way of a reduction in the otherwise appropriate sentence.  He contends that in not giving the 6^th defendant the discount to which he was entitled the judge erred in having regard to the fact that the 6^th defendant gave evidence on behalf of the 1^st defendant, testifying that neither the 1^st or 2^nd defendant were present at the robbery.

The submissions of the respondent

32. In his helpful written submissions Mr Leung submits that, in light of the circumstances of the two robberies, the judge was fully entitled to have taken the starting points for sentence that he did.  In consequence, he submits the sentences imposed upon all the defendants reflected the gravity of the offence and were entirely appropriate.  Of the contention made by the 5^th defendant that he was unaware that one of his fellow robbers was possessed of a gun at the time of the robbery he points to the fact that the Summary of Facts which he accepted before the judge for purposes of conviction and sentence states in terms that one of the robbers was holding a “pistol-like object”. 

33. Of the discount of only one third from the starting point given by the judge to the 6^th defendant Mr Leung concedes that an additional discount, over and above one third to reflect a plea of guilty, should be given to a defendant who has rendered assistance to the police which has resulted in two co-defendants pleading guilty.  Furthermore, citing the judgment of a partly differently constituted division of this court in HKSAR v. Chan Man Chau, CACC503/1999 (unreported) he submitted that it would be wrong not to afford a defendant the discount to which he was entitled for his assistance to the police on the basis that he had given testimony for a co-accused which had been disbelieved by the jury.

34. However, he submits that the judge was entitled to take into account the fact that the 6^th defendant in his testimony sought to minimise the gravity of the offence and his own role.  In that respect, Mr Leung invites this court to contrast the factual basis accepted by the 6^th defendant in the Summary of Facts with his testimony in the trial.  He points out that in the former the 6^th defendant accepted that the robbers were holding choppers and sickles and that one of them was holding a “pistol-like object”.  Also, the 6^th defendant had accepted that he had been identified by a witness as being the robber who carried the gun.  Further, Mr Leung points to the reference by the judge to the fact “… that PW6, Au Kwok Wai, identified Wu Bing as the person holding the pistol.”  Of course, that is the 6^th defendant.  In his testimony the 6^th defendant had said that whilst one of the robbers brandished a chopper and another a sickle, he himself held a branch. None of the other three robbers was armed.  He had not seen a pistol.

35. In support of the relevance of the nature of the 6^th defendant’s testimony in contrast to what he had accepted in the Summary of Facts Mr Leung relies upon the judgment of this court delivered by Stuart-Moore VP in HKSAR v. Ng Chi Wong, CACC386/2002 (unreported).  In that case the court were concerned with an application for leave to appeal against sentence where the defendant had pleaded guilty on arraignment and had testified in the trial on behalf of his co-defendants.  The judge disbelieved his testimony.  In sentencing the defendant the judge had not afforded him the full one third discount stating that he had done so because the defendant had challenged assertions in the admitted facts.  It was submitted on behalf of the respondent at the appeal that the situation which had arisen was to be likened to a Newton inquiry.  Of that submission the court said (paragraph 58) :

“Plainly, there was force in Mr Wong’s argument that by embarking on this course, D1 had lost some of the credit to which he was otherwise entitled for pleading guilty.  This then became a matter for the judge to exercise his discretion in deciding by how much the discount should be reduced.”

36. Mr Leung submits that the judge was entitled to approach the issue of the discount to be afforded to the 6^th defendant by application of that approach in principle.

Conclusions

37. We are satisfied that in light of all the circumstances of the commission of the robbery of 4 July 2003, in particular the multiple number of robbers, the fact that they were not only possessed of but also  brandished knives, choppers, sickles and what appeared to be a pistol at their victims, the judge was entirely justified in taking a starting point for sentence of 12 years’ imprisonment.  This was a grave crime for which a severe sentence was justified.  The citizens of Hong Kong are entitled to walk the hillsides of the countryside in broad daylight in safety, without the fear that they may be set upon by armed brigands such as these defendants.  We reject the contention made by the 5^th defendant that he did not accept in pleading guilty that he was a party to a robbery in which one of the robbers brandished what appeared to be a pistol.  In the court below, his counsel made no such suggestion in mitigation and the Summary of Facts is self-explanatory.  We are satisfied that the sentences imposed upon the 1^st and 5^th defendants were fully justified and entirely appropriate.

38. It is clear from the transcript of the mitigation advanced by Mr Donald on behalf of the 6^th defendant, whilst he acknowledged that the 6^th defendant had given testimony in the trial in favour of the 1^st and 2^nd defendants which had been disbelieved, that he invited the court in direct terms to afford a discount greater than the one third discount, to which he was entitled for his pleas of guilty, to reflect the fact that the 4^th and 5^th defendants had pleaded guilty as a result of being served with the 6^th defendant’s witness statement.  Nowhere in the interchanges between the judge and Mr Donald did the judge indicate that he was not minded to do so.  Certainly, the judge made no reference whatsoever to having regard, in his consideration of the appropriate discount to afford the 6^th defendant, to the matters to which Mr Leung has referred, namely that the effect of the testimony of the 6^th defendant was to lessen the gravity of the offence and to minimise his own role.  It is clear that in his mitigation Mr Donald did not pray-in-aid the testimony of the 6^th defendant.  What he did was to accept that the jury did not believe his testimony.  He went on to submit :

“… he shouldn’t be punished for the fact that he’s given evidence which has not been believed in relation to D1 and D2 ... he should be getting the full discount for his help in assisting police...”

39. In the reasons the judge gave for determining to afford the 6^th defendant a discount of one third only from the starting point for sentence, quoted earlier, the judge made no reference to taking into account the testimony of the 6^th defendant in respect of the nature of the offence or the role of the 6^th applicant.  All he did say was that he had been disbelieved by the jury.  Given that this experienced judge had detailed succinctly various matters to which he had regard in respect of the 6^th defendant in determining the appropriate discount for sentence in respect of count 2 we do not feel able safely to assume that he had regard to the matters relied upon by Mr Donald.  It is to be noted that the judge stated that he gave Yip Fung a discount of one third from the starting point in respect of count 1.  Quite properly the judge did not reduce that discount in consequence of the fact that the jury had rejected his evidence in respect of count 2.  It is clear that the judge applied that principle to the 6^th defendant.  However, the reasons articulated by the judge for determining to allow a discount of one third only do not explain why the 6^th defendant’s legitimate expectation of a further discount, to reflect his assistance to the prosecution resulting, as was accepted, in pleas of guilty by these defendants had not been realised.  In all the circumstances, we were satisfied that the 6^th applicant was entitled to a further discount above one third.

40. The 5^th defendant has advanced no good reason for his application for leave to appeal against sentence to be granted out of time.  There being no merit in his proposed ground of appeal we refused to grant him leave to appeal against sentence out of time.  For the reasons set out above the application for leave to appeal against sentence of the 1^st defendant was dismissed.  We allowed the application for leave to appeal against sentence of the 6^th defendant and treating it as the hearing of the appeal we allowed his appeal in respect of the sentence passed by the judge in respect of count 2 and reduced the sentence imposed to seven years and two months’ imprisonment.  In the result, the total sentence of imprisonment imposed upon the 6^th defendant is nine years and two months.