R. v. YAM CHIK-SANG

IN THE COURT OF APPEAL

1991, No. 210
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 18 March 1991 the applicant pleaded guilty before Leonard J to 7 counts in the indictment. Those counts were as follows: (1) robbery; (2) possession of a firearm at the time of committing a robbery; (3) resisting arrest whilst in possession of a firearm, (4) and (5) wounding with intent; (6) shooting with intent and (7) possession of arms and ammunition without a licence.

2. On 9 April 1991, he was sentenced to a total of 20 years imprisonment on those counts. He now applies for leave to appeal out of time against the sentences imposed.

The facts

3. On 13 December 1989 the applicant and another accused called Lam went into the Cheung Sha Wan Branch of the Standard Chartered Bank at about 2.30 p.m. There were 7 staff and 16 customers in that Branch. The applicant was carrying a pistol. All those in the Bank were ordered to the floor. Fortunately one of the staff managed to activate a silent alarm and the surveillance cameras. On the cameras the applicant was plainly to be seen carrying the gun. Over a hundred thousand dollars was snatched and the two of them fled.

4. The applicant escaped in a taxi. He used his gun to avoid arrest. He fired the gun through the taxi windows and two police officers were hit and wounded. Later he fired the gun again to avoid arrest. But he succeeded in making his escape.

5. On 19 March he was found in a wooden hut near Tuen Mun. He was arrested. A revolver and ammunition was found in the hut.

6. After his arrest, he confessed to the offences. He gave assistance to the police by making statements implicating others in the offences.

Sentence

7. Taking 25 years as the starting point the judge reduced the sentences to a total of 20 years, taking into account the plea of guilty, the circumstances of the offences and the assistance which the applicant had provided at that time.

Proceeding since trial

8. After that hearing the applicant applied for leave to appeal against those sentences. However, on 19 February 1992 he abandoned his application for leave to appeal. In the meantime, in July 1993 he and his co-accused gave evidence against two others involved in the offences. It is right to say, but for his evidence, those two would not have been either arrested or in the result convicted.

9. On 21 July 1993 he applied for leave to appeal against his sentences again, no doubt wanting at that time to rely upon the assistance that he had given to the prosecuting authorities by giving evidence. That assistance, of course, had taken place after he had been sentenced and after he had abandoned his application for leave to appeal against sentence.

10. However, on 12 January 1994 he abandoned his second application for leave to appeal against sentence out of time. It was abandoned so that he could apply to the Executive for consideration by HE the Governor for a reduction of his sentence consequent upon the assistance he had given. On 22 February 1994 the circumstances were considered by the Executive and his overall sentence was reduced by 18 months, on account of the assistance given to the prosecuting authorities.

The present application

11. He is dissatisfied with the reduction that he received from the Executive. So he now seeks leave to appeal out of time against his sentences yet again so that this Court may consider the whole position and hear his counsel submit that the sentence now, as reduced by the Executive, ought to be further reduced. He has made certain choices. He correctly chose to apply to the Executive for a reduction of sentence after he had abandoned his application on sentence to this Court. He now asks this Court to review the reduction that had been made by the Executive.

Conclusion

12. Those are simply not good grounds for this Court to extend time for leave to appeal. Indeed, we understand that a further petition has been advanced to the Executive and refused in 1995.

13. The particular matter which Miss Draycott seeks to advance to this Court is that he ought to have been advised to pursue his appeal originally, and that if he had pursued his appeal, there were arguable grounds that he was not given a sufficient discount for his original plea and for his promise to assist the police. She supports this by the fact that his co-accused pursued an appeal successfully. Finally, she points out that since giving evidence for the Crown, he himself has been in protective custody because he has received threats of injury.

14. Naturally in exercising our discretion we have considered those matters. Turning to the discount which he was given at the time - the overall sentence which was passed in the circumstances of the offences and of the applicant himself, was certainly not one which was manifestly excessive nor was it wrong in principle. This is not a case - as Miss Draycott put it - of shutting out the applicant from justice.

15. So far as the other appellant, Lam, was concerned, the circumstances in which he received a reduction are not known to this Court. His circumstances no doubt were different.

16. As to the threats the applicant has been under and the difficulty of serving his sentence, these are matters which have to be borne in mind by this Court when considering a reduction of sentence and no doubt are borne in mind by the Executive as well.

17. In the result, there are no good grounds for granting leave to appeal out of time on this third application after 5 years and it is refused.

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