R. v. CHOI MAN HAY

IN THE COURT OF APPEAL

1996, No.102
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter pleaded guilty to four counts of robbery. The first three were robberies in which the victims were ladies, one was 78 and one was 61. They took place between 3rd January 1995 and 29th February 1995. In each a single lady was targeted, a degree of violence was used and the victim was robbed of the bag which she was then carrying. The fourth count, which was Count 14 in the indictment, was more serious insofar as it was a robbery in company. In that, and I take the facts from the Admitted Facts, two men (one of whom was the defendant) suddenly approached a man from behind. The applicant hit him on the back of head with a piece of wood. The other accused produced a knife and threatened him. The man was told that they would the "headbanger gang" and HK$1,400 was taken from him. He was then taken to a cash point and an unsuccessful attempt was made to withdraw money. His portable telephone was taken and he was told that he had to redeem it for $2,000. A strange aspect of the matter is that the victim before reporting to the police paid the money and redeemed his telephone. However, he did then report the matter and in consequence a police investigation was commenced which resulted in the arrest of the applicant and the other accused.

2. The trial judge rightly viewed the three charges in which ladies were set upon and robbed, i.e. Counts 2, 3 and 4, as serious ones and took a starting point of six years in each which was reduced to 41/2 years bearing in mind that the applicant had pleaded guilty. This was the only mitigating circumstance which he took into account. He took a more serious view of the other robbery count, and rightly so as it was a robbery in company in which violence was used. He took a starting point of eight years on that count, which was high but within the proper range, and reduced it to six years because of plea.

3. The applicant now asks for leave to appeal against the overall sentence of six years, all sentences having been made concurrent, on the ground that it was too heavy and urges in particular that the judge failed to give any credit for his co-operation with and information given to the police upon arrest. It is so that the judge made no mention of having giving any credit for any such co-operation. Are we satisfied that there was significant co-operation which deserves some credit?

4. The applicant says that he gave the police the name and address of the co-accused and, when his cautioned statements are looked at, it can be seen that this is so. He gave the police the co-accused's full name, his address and a reasonably exact description of him. Mr. Saw, who appears for the Crown, says that the co-accused's involvement was known to the police at that stage but it must, nonetheless, be said that detailed information was given of a nature which would assist in identifying and apprehending the other accused. The applicant also says that he gave information which would have assisted the police to apprehend offenders in another robbery at a 7-Eleven Store (Charge 12). We find no mention of this in the cautioned statements but Mr. Saw has very fairly drawn our attention to the admitted facts which contain the following statement:

"The arrest of the Defendants were based only on 'information' received by the police that D1 (the applicant) was involved in Charge 12 (the 7-Eleven robbery) which turned out not to be the case, though he implicated D2 and the other man."

Clearly it was an admitted fact that the applicant had given information implicating two others, one of whom was the co-accused, in that robbery. As we have said the judge did not give any credit to the defendant for the above assistance. The courts have stressed in recent times that a generous discount should be given to an applicant who pleads guilty and that he is entitled to a further discount if he has shown a real degree of co-operation with the police. We are satisfied that the applicant was entitled for plea and for information given to the police to an overall discount of three years from the starting point of 8 years and we would, therefore, order that the sentence on the fourth robbery charge, i.e. Count 14 on the indictment, be varied from one of six years to one of five years. All sentences are to remain concurrent making an overall sentence of five years rather than that imposed of six years.

5. The hearing of the application will be treated as the hearing of the appeal and the sentences will be varied accordingly.