R. v. CHAN KIT CHEUNG and Another

IN THE COURT OF APPEAL

1995, No.739
(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 1st applicant Chan Kit-cheung pleaded guilty to one count of possession of arms and ammunition and one count of conspiracy to rob. He was sentenced by Saied J. to a term of eight years on the first count and ten years on the second count with the terms ordered to be concurrent. We will look in due course at the way in which those sentences were arrived at. The 2nd applicant pleaded not guilty both to the count of possession of arms and to the conspiracy count. He was found guilty after trial on the possession count and found not guilty on the conspiracy count and sentenced to imprisonment for ten years on the former count. Both applicants seek leave to appeal against their sentences.

2. We turn firstly to the 2nd applicant, represented by Mr. Mullick, who, in an affirmation which we have given leave to be filed in the appeal, says:

"In a conference prior to trial I was advised by my trial counsel that I had a good defence of the charge and that I should plead not guilty. The advice was that if I was not in possession of the gun voluntarily then I was not guilty of the offence. I had no knowledge of the law and I accepted my counsel's advice and proceeded to trial.

I had since been advised that the advice given to me was wrong. In the event that I had been advised that I was guilty of the offence then I would have entered a guilty plea and asked my Counsel to mitigate on my behalf."

3. We also allowed an affirmation from counsel at trial to be filed. In that he said that the choice of plea was entirely the applicant's but also that he was "of the opinion that it could be arguable that whether a person should be guilty of the offence if he was in a momentary custody and control of a revolver and bullets under compulsion and unwilling circumstances." It is contended by Mr. Mullick that this was not the advice that should have been given. The applicant was admitting that he was in possession and control albeit with certain reluctance, and should have been told that if he gave that evidence at his trial he would inevitably be found guilty. Counsel below was placed in a difficult position. He was being told by the applicant that whatever the law might be, the fact of the matter was that he had felt compelled by circumstances of friendship for a short time to conceal the gun on his person and he did not consider himself guilty of anything. In those circumstances counsel, no doubt considering that he was doing the best he could for his client, acquiesced in his entering a plea of not guilty. He should, as Mr. Mullick contends, have made it plain to his client if he gave evidence in accordance with his instructions a verdict of guilty would be inevitable. The applicant went into the box gave evidence in accordance with his instructions and was convicted.

4. Mr. Mullick submits that as the applicant was never properly advised, as he should have been, he was deprived of the opportunity to make a reasoned assessment as to what he should do. We do not, of course, know what he would have done had he been given proper advice but we take Mr. Mullick's point that he was deprived of the opportunity to make a reasoned assessment in this regard. That being so, Mr. Mullick submits that the applicant is entitled to have a legitimate sense of grievance and that fairness demands that he be given the sentence he would have received had he entered a plea of guilty. As we have acknowledged counsel below was in a difficult position and we are satisfied that he did for his client what he considered was the best he properly could in the circumstances. Nonetheless his client was deprived of the opportunity to make a reasoned decision as to whether he would plead and that he is entitled to labour under a sense of legitimate grievance. We do not, of course, know what he would have done had he been given correct advice but, in the circumstance, we consider that justice demands that we order that the sentence be reduced to one of eight years, that being a proper sentence after a plea.

5. We allow the application, treat its hearing as the hearing of the appeal and reduce the sentence accordingly.

6. The 1st applicant has placed very carefully reasoned grounds before us. He says:

"In passing sentence, the trial judge reduced one-third and gave a ten-year sentence taking fifteen years as the starting point for sentence. He did not consider that I had co-operated with the police and become a witness accomplice."

He goes on to say that the starting point of 15 years which the trial judge took was excessive as full consideration was not given to the fact that he pleaded guilty from the beginning, showed remorse, supplied information and became a Crown witness. He, when addressing us today, says that he is suffering in prison because of his co-operation as is his family.

7. It is not easy to follow the course the judge took when sentencing. He appears with regard to the conspiracy to rob to have taken as his starting point 15 years, the appropriate starting point after trial, and as regards the possession of arms charge to have taken eight years, the appropriate sentence after plea. He then gave a discount of five years on account of plea on the conspiracy charge and was left then with sentences of ten years for the conspiracy and eight years for the possession of arms. That would, had consecutive sentences been imposed, have produced an overall sentence of 18 years which the judge, with the totality principle in mind, reduced to 15 years. He then because of the co-operation of the applicant and his giving evidence, reduced that to an overall sentence of ten years. This approach, in our view, was flawed. The starting point of 15 years on the conspiracy count was appropriate to a conspiracy such as we had here which involved a possible use of firearms. It must be remembered that the conspiracy was at a very early stage and it does not appear that any firm plan had been formulated. We are satisfied that the sentences for the conspiracy and the possession counts should have been wholly concurrent. This gives starting point before giving consideration to either plea or co-operation of 15 years. We are satisfied that, when the plea and co-operation, which included the giving of evidence, are taken into account, this starting point should be discounted by seven years producing an overall sentence of eight years.

8. We, therefore, order that the sentence on the conspiracy count be reduced to eight years. The sentence on the possession of arms count remains at eight years and the sentences are ordered to be concurrent producing a totality of eight years.

9. We allow the application, treat it as the hearing of the appeal and vary the sentences as indicated above.