R. v. TAM SHING CHOI AND OTHERS

1995, No.768

(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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P. Chan, J. (giving the judgment of the Court) :

1. This is an application by the 2nd Applicant for leave to appeal against sentence. The 3rd Applicant seeks leave to do so out of time.

2. These two Applicants and another person (who was the 1st Defendant in the court below) were convicted after trial of one count of robbery. The 2nd Applicant was sentenced to five years' imprisonment which was ordered to run concurrently with a sentence of 18 months which he is serving in connection with another offence. The 3rd Applicant was sentenced to five years' imprisonment.

3. These two Applicants and the 1st Defendant applied for leave to appeal against their convictions. Their applications were dismissed by this court on 3rd July 1996.

4. The facts as admitted or found by the court are as follows. On 10th October 1995 at 2:00 am, the victim was robbed by two men on the 3rd floor of a carpark at Rumsey Street. The victim was grabbed from behind round the neck. His head was pressed onto the floor. A knife of one foot long was produced. After the robbery, the victim was hit on the head with a hard object. He suffered head injuries which required suturing. The robbers took away his Rolex watch, a gold necklace and his wallet containing some cash and credit cards. Shortly after the robbery, the victim's visa card was used by the robbers to check the balance in his account using the ATM. However, since the PIN was not known, the card was retained by the machine after three attempts. The 2nd Applicant's fingerprints were found on the card. The victim's Rolex watch was subsequently pawned by two persons using the victim's identity card. This identity card was also used later to enter into a service agreement with a paging company to obtain the service of a pager. A copy of the agreement was found in the possession of the 3rd Applicant. A knife together with a bag which was used to contain the knife similar to that seen by the victim at the scene were found in the 3rd Applicant's kitchen.

5. The trial judge found that it was the 2nd and 3rd Applicants who actually robbed the victim; the 3rd Applicant who had waved the knife during the robbery; the 2nd Applicant and another person who had used the victim's visa card to try to extract money from the ATM; and the 3rd Applicant who had used the victim's I.D. card to subscribe for a pager.

6. We should say at the outset that the robbery in the present case was serious involving the display of a knife and the use of actual violence which resulted in the victim sustaining injuries. There was an attempt to obtain further money from the victim's account using his visa card and to incur liability using his I.D. card. What is more, the robbery was committed by serving police officers. The trial judge seemed to accept that this was not an aggravating factor since the Applicants were not in uniform when they committed the robbery. In our view, whether they went to rob while in uniform or not would not make very much difference. A person who is entrusted with the duty to prevent and detect robberies is clearly more culpable to commit such crime than an ordinary person. As the trial judge had said, this is a case of a grave breach of trust. We think that this must be an aggravating factor. The trial judge did not specify any starting point when he sentenced the Applicants. However, it would appear that in the circumstances of this case, the starting point should be more than five years.

7. The 2nd Applicant relied on the grounds set out in his application which are supplemented by a letter dated 29th December 1996. He also made oral submissions before us. The first ground was that he was only assisting in the crime and that it was the 3rd Applicant who was the mastermind in the robbery. He submitted that he should receive a lighter sentence than the 3rd Applicant. Referring to p.19 of the Reasons for Verdict, he argued that even the trial judge took the view that the part played by the 3rd Applicant was more serious. That is not correct. The trial judge was only making the remark that he would look first at the case against the 3rd Applicant because

"... out of all the circumstantial evidence - the most immediately compelling, in my view, is that against the 3rd (Applicant) - in the form of the property that was found in his possession or under his control when his home was searched."

There is nothing in the evidence which might suggest that it was the 3rd Applicant who was the mastermind behind the robbery.

8. The second and the main ground relied upon by the 2nd Applicant was that he should be given a greater discount because of his assistance to the police and the ICAC. He said he took the initiative to approach the ICAC and confessed to corruption (for which he was sentenced to one month consecutive to his 18 month sentence). He also provided information to them about other officers. On 21st May 1996, he testified in the District Court in DCC Case No.22 of 1996 concerning the theft of some computer information compiled by the police. On 2nd December 1996, he attended the Magistrate's Court and testified against three defendants in the committal proceedings in another case involving a conspiracy to pervert the course of justice. That case had been committed to the High Court for trial which would take place some time this year.

9. A sentencing court would normally give a discount for the co-operation and assistance rendered by a defendant to the police, such as in providing information leading to the apprehension of other culprits or testifying against them in court in connection with either the same offence or other offences. However, where it is merely a promise to do so in the future, the court would normally leave it to the Executive to do whatever it can after the promise has materialized. (See Silke V-P.in A.G. v. Wong Kwok-wai, [1991] HKLR 384 at 387). An appellate court would be slow to interfere with the sentence on the ground that there is such a promise. In R. v. Choi Fook-sang, Criminal Appeal No.278 of 1995, Mortimer J.A. also said :

" Usually when those circumstances arise, the court will not interfere with the sentence, but will indicate that the proper course is for the applicant himself to make representations to the Executive, after the assistance to be given is complete." (At page 3)

10. In the present case, the 2nd Applicant gave evidence for the prosecution on 21st May 1996 in another District Court case. We were told and the Crown accepted that he came up to proof although the defendants in that case were all acquitted because of some other reasons. Obviously, when he was sentenced by the trial judge, his assistance to the police and effort in testifying in court had not been taken into consideration since these happened after sentence. Hence, while the 2nd Applicant's promise to give evidence in the pending High Court criminal trial need not be considered but should be left to be dealt with by the Executive after he has done so, we think that he should be given credit for his efforts in the District Court trial. In our view, a discount of one year would be appropriate.

11. Another matter which was raised by the 2nd Applicant was that the five year sentence was ordered to run concurrently with the 18 month sentence he is serving. However, by the time the trial judge made that order, the 2nd Applicant had already served six months in connection with the first offence. He said that he was informed by the Correctional Services Department that the six months which he had already spent did not count. He would therefore, notwithstanding the order of the trial judge, have to serve a total of five years and six months. He complained that this would not be in accordance with the order.

12. We have caused enquiries to be made about this complaint. The CSD confirmed that the 2nd Applicant's five year sentence commenced from the date on which the trial judge passed this sentence. It seems that this may well be correct. When the trial judge passed the present sentence and ordered it to run concurrently with the previous 18 month sentence, that order could not be retrospective. It could only take effect on the day on which it was made. During the first six months when the 2nd Applicant was serving the first sentence, there was only one sentence. The second sentence had not been imposed. There could not be any concurrence during that period.

13. We note however that in his Reasons for Sentence, the trial judge said at p.36Q of the bundle :

" I agree with Mr Stirling, and I accept for present purposes, that bearing in mind this offence was committed at very much the same time as the other offence, if he had been tried at the same time and sentenced at the same time as the other offence, as he could well have been, that it would, in all likelihood have resulted in a concurrent sentence being imposed. (emphasis added)

In the case of the 2nd defendant also I can see no reason to depart from the guidelines in Mo Kwong-sang. Accordingly, in all the circumstances, I impose a sentence on him of 5 years' imprisonment as well. And for the reasons I have given, I order that that sentence runs concurrently with the sentence that he is presently serving."

14. It is quite clear that the trial judge had intended that the whole of the second sentence of five years was to be concurrent with the previous sentence of 18 months. But the practical result of the second sentence being passed six months after the first would be contrary to such intention, the 2nd Applicant having to spend six months more than what the trial judge intended. We agree that the 2nd Applicant does have a reasonable and genuine grievance. There does not seem to be any power to order a second sentence to run retrospectively from the date on which his first sentence was imposed. We think that it would best serve the interest of justice if we reduce the sentence by another six months in order to reflect the trial judge's intention.

15. In the circumstances, we grant leave to the 2nd Applicant to appeal against sentence, treat his application as the appeal and allow it. His sentence will be reduced from five years to three and a half years which will run concurrently with the 18 months he is serving as from the date of his present sentence for the robbery charge.

16. We would suggest that in future, when passing a sentence on a defendant who is serving a sentence in connection with another offence, the court should bear in mind the period which the defendant has already served if it is considering a wholly concurrent sentence. It should indicate clearly how much of the sentence to be imposed should run concurrently with the existing sentence or from when his sentence is to take effect. This would avoid any misunderstanding or false expectation on the part of the defendant.

17. With regard to the 3rd Applicant, his application is of course out of time. His explanation was that he had full confidence in his appeal against conviction and therefore it did not occur to him that he should appeal against sentence. We do not accept such explanation. Time and time again this has been offered as an excuse for making a late application for appeal against sentence. We do not think this should be accepted at all. Unless there are very good merits in the appeal, leave should not normally be granted.

18. We have considered the grounds put forward by the 3rd Applicant in his application. We do not think there is any merit in them. His first complaint was that his lawyers did not put forward any mitigating factors on his behalf before the trial judge. No particulars had been submitted to us and we cannot find any. As a second ground, he submitted that because he was an ex-police officer, he was imprisoned separately and this had caused him some hardship. We cannot see any substance in this ground either.

19. The 3rd to 5th grounds were that he had served 20 years in the police force and because of this conviction he had lost his pension and benefit to the amount of more than $1 million dollars. His family would also suffer hardship. His mother was now 80 years of age, had breast cancer and required attention. We do not think that his service with the police and loss of pension are very strong mitigating factors. As an experienced officer, he should have been well aware of such consequences before embarking on a serious offence such as robbery. The conditions of his mother had already been referred to by the trial judge and we believe that this had already been taken into consideration when he passed the sentence.

20. In his 6th ground of appeal, the 3rd Applicant complained that the 1st Applicant had only received three years and the 2nd Applicant received five years which was ordered to run concurrently with an existing sentence. As the trial judge found, the 1st Applicant had played a much lesser role in the robbery. The sentence passed on the 2nd Applicant was due to the special circumstances of his case and for the reasons given by the trial judge to which we had referred. We think that the sentence of five years for a serious robbery committed by a serving police officer is in fact on the light side and cannot be regarded in any way as manifestly excessive or wrong in principle. There is no merit in this ground. The last ground was that he had behaved well in prison. We do not think that is a relevant factor at all.

21. For the reasons which we have given, his application is refused.