R. v. LONG TING KWOK

IN THE COURT OF APPEAL

1996, No. 322
(Criminal)

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J U D G M E N T

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Bokhary, J.A. :

1. This applicant is a man in his late 30's.

2. On February 3, 1994, he and a number of other men committed a highway robbery. They pulled their car to a halt in the path of a container lorry. Then they overcame the lorry driver; bound his hands and feet with wire; and threatened to shoot him if he dared to move. As to this last matter, one pauses to note that there was no evidence that the robbers really had a gun with them. Finally, they made off in the lorry with its cargo of $1.8 million worth of electrical appliances.

3. Fortunately, the lorry driver had noticed the robbers' car following his lorry but passing up many opportunities to overtake it. So he had alerted his employers by radio that a robbery might be afoot.

4. In the result, the police were on hand to intercept the hijacked lorry.

5. The robber who drove the hijacked lorry was caught on the spot. Others, including this applicant, were caught later on through detective work.

6. On November 10, 1995, the applicant appeared before His Honour Judge Wilson in the District Court, charged with this robbery. He pleaded guilty; but sentencing was deferred. He was going to give evidence before another judge against one of his fellow robbers. So it was felt right by Judge Wilson to sentence him after that.

7. In the result, he did give evidence against his fellow robber, who was convicted on his evidence and then sentenced to 4 1/2 years' imprisonment.

8. This applicant himself was then sentenced. That was on May 22, last year. Judge Wilson sentenced him to 4 years' imprisonment.

9. The judge had taken a starting point of 7 years. In doing so, this is what he said about the robbery itself:

" This robbery itself was sophisticated and planned, and involved a very valuable cargo. I have no evidence that any weapons were carried, although shooting with a gun was referred to as a threat. There was a show of force by a number of men and some violence was used, in that the driver was tied up. The circumstances of the robbery must be regarded seriously."

10. And then this is what the judge said about the applicant himself:

" In favour of the defendant I take into account his plea of guilty and I take into account that he has given evidence at the other trial, which I must assume may have led to the conviction of another offender."

11. As to the discount, the judge said that he allowed a discount of 3 years for the plea of guilty and for the assistance given to the prosecution in the other case. On other words, he gave a discount of 40%.

12. The starting point, having regard to the relatively minor role of this applicant, is perhaps high. But it is difficult to characterise it as beyond the appropriate range.

13. Mr Bruce for the prosecution said that the one troubling thing about this case might be this. The relative justice - that was his expression - between this applicant and the man against whom he gave evidence might require some distinction between them greater than half a year. After all, this man had pleaded guilty and given evidence for the prosecution, while the other man had pleaded not guilty.

14. When he was discussing with counsel whether to sentence this applicant before or after the result of the other case was known, Judge Wilson posed this question: "Is it not relevant to me to know, if there is a conviction in the other trial, what sentence is imposed on the co-defendant?" And later on he said this:

" If the other defendant is convicted and if he is sentenced then I have a co-offender in the very same robbery with a sentence which surely I should have regard to, in taking into account at the same time all the mitigating factors, particularly the plea of guilty from this one, compared with the plea of not guilty from the other one."

15. Now all of that was said in the presence of this applicant. But those sentiments were not repeated or reflected in what Judge Wilson said when actually passing sentence on him. So if he has a sense of grievance, then that sense of grievance would not really be less justified simply because different judges sentenced him and the man against whom he gave evidence.

16. There is another problem. As can be seen from the passage which we have already quoted, the judge said that he had to assume that this applicant's evidence may have led to the conviction of the man against whom he gave evidence. The truth of the matter is that it did lead to that conviction. It is not disputed that there was no other evidence on which that other man could have been convicted.

17. We have given anxious consideration to this case. The starting point of 7 years has to be respected. But we feel that the mitigation in all its aspects available to this applicant, not to mention the relative justice to which we have referred, requires that this applicant's sentence be reduced and reduced to 3 1/2 years' imprisonment. That being so, we treat the application for leave as the appeal itself and allow it to the extent indicated, reducing his sentence from 4 years' imprisonment to 3 1/2 years' imprisonment.