HKSAR v. MAN SIU MING AND ANOTHER

CACC 318/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 318 OF 2011

(ON APPEAL FROM HCCC NO. 388 OF 2010)

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the court):

Introduction

1.  The applicants were tried with 2 others in the High Court before Deputy Judge Stuart-Moore on an indictment which charged them with the offences of robbery, contrary to section 10(1) and (2) of the Theft Ordinance Cap 210, wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212 and administering a noxious thing with intent to injure, contrary to section 23 of the Offences against the Person Ordinance, Cap 212.

2.  At the outset of the trial D4 pleaded guilty to the robbery count and after a voir dire the 3^rd applicant also pleaded guilty to it.  The trial of the 2^nd applicant and D1 then proceeded and on 26 July 2011 the 2^nd applicant was convicted of the robbery offence and D1 of the wounding offence.  The jury had been directed not to return a verdict in respect of the count of administering a noxious thing and this count was ordered to be left on the court file.  The following day the 2^nd applicant was sentenced by Deputy Judge Stuart-Moore to 12 years’ imprisonment and the 3^rd applicant to imprisonment for 9½ years.  Both applicants now apply for leave to appeal their sentence and the 2^nd applicant also applies for leave to appeal his conviction.

3.  At the hearing, we dismissed all the applications of both applicants and said we would hand down our reasons for doing so.  These are those reasons.

The Background to the Offences

4.  The prosecution case was that on 24 May 2010, two Mainland persons came to Hong Kong from Shenzhen to deliver a suitcase containing 30 bars of platinum, worth approximately HK$12 million.  After alighting from a taxi in Sheung Shing Street, Ho Man Tin they were set upon by the applicants and D4 who had been travelling in a car driven by D1, and who were intent on robbing them of the suitcase containing the platinum bars.  The victim holding the suitcase was attacked with a hammer, and possibly a spanner, and the other with an aerosol pepper spray.  A vigorous struggle with the victims then took place, in the course of which the one who was assaulted with the hammer suffered head injuries.  Ultimately, the victim in possession of the suitcase was forced by the attack on him to relinquish it and the robbers escaped in a motor vehicle bearing false number plates that was driven by D1.

5.  Subsequently, a passer-by saw the false number plates being removed from the motor vehicle and informed the police of the car’s true number.  Soon afterwards D1 was arrested at a police roadblock but the platinum bars were never recovered.

6.  The victim who had been assaulted with a hammer sustained a 1.5 c.m. laceration on the top of his head which required sutures.  Fortunately for him he did not suffer any fracture of his skull.  However, up to the date of trial he continued to suffer occasional pain from his head injury for which he needed to take medication.  The other victim suffered pain and redness in his eyes from the pepper spray.

7.  The evidence pointed to there being a mastermind who did not participate in the robbery.  This person enlisted the help of the 2^nd applicant to recruit persons to commit the robbery with him.  The 2^nd applicant then approached D1 and the 3^rd applicant and they agreed to his proposal.  D1 was, in fact, the 2^nd applicant’s cousin.  The plan was for D1 to be the driver and the three others to commit the robbery.  The mastermind separately recruited D4, who was the person who assaulted the victim with the hammer.  D4 appears to have played a leadership role during the actual robbery, although the mobile phone call records of the 2^nd applicant showed him to be frequently calling D1, the 3^rd applicant and the mastermind both before and on the day of the robbery.

8.  The prosecution case against the 2^nd applicant essentially consisted of admissions he made in his video records of interview.  He had unsuccessfully challenged the voluntariness of these admissions in a voir dire and in front of the jury his counsel cross-examined the police officers alleging that they coached the 2^nd applicant as to what he should say and then forced him to say it in the interview.  Needless to say, these allegations were denied and the 2^nd applicant did not give evidence.  There was, consequently, no evidence before the jury that he did not participate in the robbery and no reason for the jury not to give full weight to his admissions.

9.  Thus, the position at the close of the prosecution case was that the case against the 2^nd applicant was solely a confession based one. But, that all changed when D1 gave evidence.

10.  Although the prosecution case alleged D1 to be part of the robbery, the jury convicted him of only the wounding offence.  The wounding offence related to the victim who had been assaulted with the hammer, not the victim who had been assaulted with pepper spray as this conduct was the subject of the third count in the indictment.  D1 testified at trial and his case was that he knew nothing about the robbery until it actually happened.  He claimed that he had been told that there was a plan to beat up two people whom he had never met.  He understood that his only involvement was to be the getaway driver, driving his father’s car on false number plates.  He said he was offered HK$5,000 for performing this task.

11.  Thus, by the end of the trial the case against the 2^nd applicant was not just a confession based one.  The 2^nd applicant’s admission to the police were now supplemented by inculpatory evidence of D1 who, in an attempt to exculpate himself from the robbery charge and limit his culpability to joint enterprise wounding, had given evidence which incriminated the 2^nd applicant.  This is sometimes referred to as running a ‘cut-throat’ defence.

The 2^nd Applicant’s Leave To Appeal Against Conviction

12.  In his first two grounds of appeal the 2^nd applicant complains that the judge did not properly direct the jury on how they should treat the evidence of D1.  By directing them that they should assess his evidence in the same way as any other evidence and by failing to give a cut-throat defence direction it is said that he erred.

13.  This ground refers to a passage in the judge’s summing up where it is said that he misdirected the jury because when directing the jury as to how D1’s evidence implicating the 2^nd applicant should be treated, he failed to provide an adequate measure of protection to the 2^nd applicant as he did not warn the jury against using the evidence for any purpose, and that the direction did not comply with the requirements of Specimen Direction 41.

14.  The third ground of appeals refers to his handling of a request from the jury for information on the 2^nd applicant’s criminal record.  Because the judge had to give a good character direction for D1, that direction stood in stark contrast to the absence of a similar direction for the 2^nd applicant.  Consequently, when it came to responding to the jury’s request, his failure to enjoin them not to speculate and to advise them that the 2^nd applicant’s criminal record, if he had one, was irrelevant to their deliberations, only encouraged the jury to infer that the 2^nd applicant must have had a criminal record.

15.  The last ground of appeal is that simply by virtue of the foregoing three grounds of appeal the 2^nd applicant’s conviction is unsafe and unsatisfactory.

Discussion

Grounds 1 and 2: the judge’s directions in respect of D1’s evidence

16.  When an accused testifies it is always part of a judge’s standard direction to the jury that they treat his evidence just like any other witness.  This is intended to be a direction favourable to the accused and is intended to prevent the jury from having any less regard to his evidence simply because it comes from the person on trial.  It is a key adjunct to the presumption of innocence.  In the same way courts may warn juries not to more readily assume that a police officer is a truthful witness just because he is a police officer.  Every witness comes to court equal and no witness has any credibility advantage over another.  His evidence is to be judged by what he says, in the context of all the evidence adduced in the trial, and what the jury may learn of the witness during the trial; but never simply by who the witness is.

17.  This is obviously what the judge was referring to in the first of the impugned passages when, after referring to the prosecution bearing the burden of proof and that an accused person does not have to prove his innocence, he said:

“In fact, as you have seen in this very case, he does not have to give evidence at all. He can, as the 2^nd defendant has done here, simply sit in the dock and say nothing if he wishes to. It so happens that the 1^st defendant has chosen to give evidence and so you will, of course, assess his evidence in just the same way as you would assess the evidence given by any other witness, always remembering through that he does not have to prove anything himself.” (Emphasis added)

18.  We have emphasised the word “assess” because it is important to note that the judge is not telling the jury to treat D1’s evidence, in the sense of what weight to give to it, in the same way as every other witness.  The testimony of every witness has to be assessed in order to reach a conclusion as to whether the witness is truthful; and if truthful whether or to what extent the witness is reliable and finally what weight to give to the witness’ evidence.  This is all done by a process of considering what is said; taking into account what is learnt about the witness and, where relevant, taking into account the other evidence in the case.

19.  But of course one of the things the jury learned from the evidence of D1 is that he was not a person of good character as he admitted to being willing to participate, for reward, in a joint enterprise to beat up another person.  In fact, when directing the jury on good character the judge referred to this other side of the coin in respect of D1’s character.  They also know that by his testimony he was limiting his criminal liability to the lesser offence of wounding and that in explaining how he came to be involved in this criminal enterprise he was putting forward an explanation that implicated the 2^nd applicant.

20.  Consequently, the 2^nd applicant says that when an accused gives evidence exculpatory of himself but inculpatory of a co-accused, it is incumbent on the judge to draw to the jury’s attention the fact that the accused hopes to obtain a benefit from his testimony and that accordingly his evidence should be assessed with this self-interest in mind.  In much the same way as a judge would warn a jury of an accomplice witness who testifies under the benefit of immunity from prosecution or in the hope of receiving a lesser sentence.

21.  But the difficulty Mr McGowan, for the 2^nd applicant, faces in advancing this proposition is that it rubs up against the presumption of innocence.  Every accused person has an interest in the outcome of his trial for one outcome will be his acquittal and the other outcome his conviction. The moment the jury starts regarding his evidence as possibly tainted because it comes from a witness who has interests of his own that he wishes to advance, then the presumption of innocence is undermined.  That is why, even in a cut-throat defence situation, courts are hesitant in giving the jury a self-interest warning.  It was this concern which underlay the Court of Final Appeal’s comments in Law Chung Ki & Another v HKSAR (2005) 8 HKCFAR 701 when it addressed the issue of the cut‑throat defence situation and whether there was a need for a judge to give what it called a “self‑interest” warning.  At pages 712H to 713C the Court said:

“21.   For jury trials in Hong Kong involving “cut-throat” defences, we are of the view that the advantage to an accused of a self-interest warning in respect of his co-accused’s evidence against him is, at least in general, outweighed by the disadvantage to him of an observation from the bench that he, too, may have been more interested in getting himself acquitted than in telling the truth.  Our view is that, at least in general, the judge should not take the initiative of giving the jury a self‑interest warning.

22.    Of course it may happen that what defence counsel have suggested in cross-examination and/or urged in speech may drive the judge to feel that he should say something about self-interest.  Or the judge may feel driven to do that by a question sent to him by the jury.  If the judge feels driven to say something about self‑interest, he might do so along the following lines:

‘Each accused is presumed innocent unless and until proven beyond reasonable doubt to be guilty. So the thought that he may have been more interested in getting himself acquitted than in telling the truth should not form any part of your thinking when deciding whether to acquit or convict him. It is, however, something which you may take into account when deciding whether you feel sure that what he says against a co-accused is true. All of this, too, is simply a part of the law that if there is any reasonable doubt as to an accused’s guilt, then he must be acquitted.’”

22.  In order to secure a fair trial for both accused the judge had to ensure, for the benefit of the 2^nd applicant, that the jury were well aware that:

(i)     they could not use D1’s evidence adversely to the 2^nd applicant unless they were sure it was true;

(ii)    they understood the 2^nd applicant’s case as put to D1; and

(iii)   in giving the testimony he did, D1 was advancing his own interests.

At the same time the judge had to ensure that by his directions he did not undermine D1’s presumption of innocence.

23.  In the present case he achieved these goals without the need for a self-interest warning.  He did so by firstly emphasizing to them, in accordance with the requirement of Law Chung Ki, that they could not use D1’s evidence against the 2^nd applicant unless they were sure it was true. At page 65N-P of the appeal bundle he said:

“But the 1^st defendant actually went into the witness-box and gave evidence to you that he had spoken the truth to the police. Once he goes into the witness-box, you then have evidence which you can rely on if you think it is true, but you have to be sure it was true before you start relying on it.” (Emphasis added)

24.  Secondly, he ensured that the 2^nd applicant’s case that D1 was lying and his reasons for so saying were well and truly before the jury.  The allegations by the 2^nd applicant that D1 was lying are referred to repeatedly in the course of the summing-up.

25.  Thirdly, he provided complete directions to the jury on the alternative count of wounding.  These directions had to be given only because of D1’s testimony and they related only to him.  The jury could not have been unaware that by his evidence D1 was trying to limit his criminal liability.

26.  Quite apart from all these directions there is also another reason why there was no need for a self-interest warning and that is because the judge gave an extremely generous but nevertheless incorrect direction to the jury, the effect of which was to limit the use that they could make of D1’s evidence.  He told them that they could convict the 2^nd applicant only on the evidence adduced by the prosecution and that D1’s evidence should be treated by them as supporting evidence only.  This is apparent from the following passages from the judge’s summing-up.  The first is at pages 68T-69D of the appeal bundle:

“I should say in this context that although the 1^st defendant has implicated the 2^nd defendant from the witness-box, you would be entitled to take that into account when deciding who to believe of the police, as to whether to believe that the admissions were true. What you cannot do is convict the 2^nd defendant on the evidence given against him by the 1^st. It is supporting evidence, no doubt, but nobody asks you to convict the 2^nd defendant on the evidence given by the 1^st.” (Emphasis added)

The second appears almost at the very end of his summing-up when he directed the jury, at page 108P-R of the appeal bundle, as follows:

“So in the end, what you have still to decide in the 2^nd defendant’s case is whether, on the prosecution’s evidence, you are sure of his guilt. It takes us right back to where we started.” (Emphasis added)

27.  Given the way the judge directed the jury there is no possibility of any prejudice to the 2^nd applicant arising from D1’s evidence and the approach the jury must have taken to it.  There is no merit in these grounds of appeal.

Ground 3:  the judge’s response to the jury’s request

28.  It is not unusual in a multiple defendant trial that one defendant will get the benefit of a good character direction and the other will not.  The instant case was such a situation.  The jury obviously noted that the 2^nd applicant was not given the benefit of a good character direction and this presumably prompted their query.  It was argued that this contrast between the way each defendant was treated created the potential risk that the jury would infer that the 2^nd applicant had a criminal record and, this inference having been drawn, it would infect their deliberations to the prejudice of the 2^nd applicant.  Hence, it was argued, it was necessary for the judge to give a direction firstly that the jury not speculate and secondly that whether or not the 2^nd applicant had a criminal record was irrelevant to their deliberations.

29.  What the 2^nd applicant’s argument comes down to is a concern that in the circumstances of this case, and given the directions the jury received, the jury might assess the evidence influenced by a speculative conclusion as to the 2^nd applicant’s criminal record and determine his guilt otherwise than on the evidence.

30.  What then was the evidence?  In the prosecution case the evidence consisted only of the 2^nd applicant’s admissions in his records of interview supplemented, as we have mentioned by the evidence of D1.  The 2^nd applicant’s admissions were challenged by way of cross-examination but all the allegations put to the police officers were denied.  The 2^nd applicant did not give evidence, so there was no evidence before the jury to undermine the probative value of these admissions.  As to the evidence of D1, the judge, as we have shown, instructed the jury not to convict on it alone but to use it only as supporting evidence.  In this regard he specifically directed them that they could use it “when deciding who to believe of the police, as to whether to believe that the admissions were true”.

31.  This being the state of the evidence and the directions to the jury on how they could use it, what other directions did the judge provide the jury on how to approach their fact finding role?

32.  He instructed them at page 61T-62F:

“If you make a finding against a defendant on any particular aspect of this case, make sure that it is not based upon guesswork. Under no circumstances must you allow yourselves to speculate or guess because guesses are very frequently wrong. But having said that, you are, certainly in the context of a case like this, perfectly entitled to draw an inference from evidence that you have heard. You can only draw an inference from facts which you are sure have been proved.

So it comes to this. You may draw an inference if it is the one and only reasonable inference to draw from proved facts. If a piece of evidence could go either way and you are not quite sure which way it goes, then do not draw an adverse inference on this sort of material, I hope that that is obvious. You can only draw an inference which is adverse to the defendant if you are sure it is the one and only inference to be drawn.” (Emphasis added)

33.  The passage just quoted was shortly preceded by an exhortation from the judge:

“… you should of course concentrate on the evidence that you have been given without allowing feelings of bias or sympathy to come into it.”

Later, at page 69Q-T of the appeal bundle, he said:

“I have to tell you that the evidence is now at a close and so if you thought of a question that you would like to know the answer to, I cannot reopen the evidence. I am not allowed to. The evidence is finished now and you will have to decide the case on what you have heard during the trial. I cannot allow further evidence now to be called.”

And his closing remarks to the jury he said at page 109H-K:

“At the beginning of this trial, you all took an affirmation to return a true verdict according to the evidence. Here, as you know, there are two defendants so it is verdicts separately called for in respect of each. All you can decide this case on is the evidence. So the stage has now been reached where you have to carry out the responsibility you have undertaken.”

34.  All of these passages emphasize to the jury that they:

(i)     must decide the case only on the evidence;

(ii)    must not allow their minds to be affected by feelings of bias;

(iii)   must not speculate; and

(iv)   can only draw inferences from proven facts and cannot draw an inference adverse to an accused unless it is the only reasonable inference from those proven facts.

35.  These directions provide the context in which the argument being mounted by Mr McGowan must be considered.  For it is in this context of the directions already given to the jury that the adequacy of the judge’s response to their query must be judged.  His response was as follows:

“The second question on that page is prior conviction of D2, criminal records, but as I told you, the evidence is closed, shut and I’m not entitled to give you any further evidence. You’re not entitled to have any further evidence and so that’s the rule, I’m afraid, so I can’t answer that one.”

36.  Having already told them that they can only decide the case on the evidence and that in respect of this issue there is no evidence, and given the other directions of the judge, we do not see that there was any risk that the jury would allow their reasoning process to be corrupted in the way suggested by Mr McGowan.  For that to happen would require the jury to actually ignore and act contrary to the directions of the judge.  As has been said on many occasions, this Court must, absent any reason to the contrary, act on the assumption that the jury have, in their assessment of the evidence, complied with the directions they have been given.

37.  When the judge’s response to the jury’s query is viewed against the summing-up as a whole we cannot see that it would lead the jury into an erroneous approach to their deliberations.  There is no merit in this ground of appeal.

The 2nd and 3rd Applicants’ Leaves To Appeal Against Sentence

38.  The 2^nd applicant simply complains in his Notice of Appeal that the sentence of 12 years’ imprisonment is manifestly excessive.  In support of this ground he makes two points.  The first is that this starting point is too high and the second is that the judge failed to distinguish between the culpability of himself and the other participants in the robbery, especially D4.  On the former point it was submitted that the judge erred in holding that the present case was more serious than either of the two robberies that took place in HKSAR v Lai Kam Tong& anor [2005] 1 HKC 232.  On the latter point it was argued that the 2^nd applicant had no part in the organization and planning of the robbery and believed that only a low level of violence would be employed in it.  He did not agree to participate in a robbery involving the use of a lethal weapon and so should not be sentenced as though he was a party to a joint enterprise head‑bashing robbery.  Furthermore, the use by D4 of the hammer and the leadership role played by him in the course of the robbery justified distinguishing the 2^nd applicant from him and adopting a lower starting point than that of the 12 years’ imprisonment employed for D4, especially given D4’s lengthy criminal record.

39.  The complaint of the 3^rd applicant is that he should not have been deprived of his full one-third discount merely because he did not plead guilty until after his challenge to the voluntariness of his confession had failed.  He submits that the judge was in error in reducing the usual one-third discount by 18 months as a result of him exercising his right to challenge the admissibility of his confession.

40.  The 3^rd applicant does not argue that the starting point of 12 years’ imprisonment was manifestly excessive, but does say that the trial judge erred in affording little or no credit for the fact that he had no previous convictions, and was further in error for not distinguishing his culpability from that of D4 and reflecting his lesser culpability in a lower sentence.

Discussion

Starting point

41.  This Court has not laid down for the offence of robbery sentencing tariffs of the kind prescribed for drug offences.  It has provided guidelines as to the minimum sentence that should usually be imposed in ordinary cases which do not involve the presence of aggravating features, and laid down guidelines in particular categories of robbery, and finally it has discussed what might constitute an aggravating feature and how the presence of certain aggravating features might impact on sentence.  Thus, in Mo Kwong Sang v R [1981] HKLR 610 this Court said:

“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.”

42.  The court went on to say that if the robbery involved an invasion of private premises then a sentence of 6 years is appropriate and if actual violence is applied to the victim then 7 years should be considered.

43.  These guidelines were reaffirmed by the Court of Appeal in Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312.  However, in that case the court was concerned at the proliferation of head-bashing robberies and felt that this type of robbery warranted a separate guideline.  It said at pages 319I-320E:

“It seems to us that the courts have ample powers of dealing with the kinds of robbery for which Mo Kwong Sang v R provides guidelines as to sentence. Essentially, the guidelines which that case provides sets out the tariffs for sentence following a contested trial but there is ample discretion provided to the courts for an upward adjustment where there are aggravating factors. However, the judgment does not provide an exhaustive list of what may amount to aggravating factors. It seems to us as a matter of the most straightforward commonsense that where a robber deliberately sets about his victim by striking a blow or, as in this case, blows to the victim’s head with a weapon which is capable of causing brain injury, this will be an aggravating factor. It is a particularly dangerous act.

However, in view of the evidence with which we have been provided, whilst we do not consider that any general changes need to be made to the Mo Kwong Sang v R [1981] HKLR 610 guidelines, we are satisfied that head-bashing robberies are in a category of sufficient gravity to justify a particular band of guideline sentence which was not contemplated at the time when judgment was given in that case.  In our judgment, the usual sentence to be imposed for such robberies, following a contested trial, where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or the culprit who is intent on robbery, should not be less than 8 years’ imprisonment.  This is not, of course, a strait-jacket, and there may be some offences where a lesser penalty can be imposed depending on all of the circumstances.  Equally, depending on how severely the victim is injured, there will be other cases for which greatly increased sentences will be required.”

44.  Other sentencing guidelines have been issued since Mo Kwong Sang. For example, in HKSAR v Pau Lai Sing [2010] 3 HKLRD 233 this Court said that for robberies of banks, jewellery shops and other establishments in possession of large amounts of cash or valuable items where the robbers used imitation firearms then the normal sentencing range was 12 - 15 years’ imprisonment.  But, for other types of robberies where imitation firearms are used this Court in Secretary for Justice v Lee Chun Ho Jeef [2010] 1 HKLRD 84 said the appropriate starting point was 10 years’ imprisonment.  At the extreme end of the range is the robbery of commercial premises where large amounts of cash or valuable items are present, the robbers use real firearms and engage in a gunfight with the police.  In Secretary for Justice v Wong Kwong Fei & anor [1998] 1 HKC 739 the Court of Appeal said that for this kind of robbery 24 years was the appropriate starting point.  This is not an exhaustive list of the sentencing guidelines issued by this Court but the examples quoted illustrate the guideline approach to sentencing that this Court has taken for the offence of robbery.

45.  In addition to laying down sentencing guidelines for categories of robbery this Court has also identified factors which may be regarded as aggravating the seriousness of the offence. For example, in Mo Kwong Sang the court said that the following should be regarded as aggravating factors:

(i)     invasion of domestic premises at night;

(ii)    the presence of more than one person in the group of robbers;

(iii)   threats made to the victim;

(iv)   ill-treatment of elderly persons and children; and

(v)    a multiplicity of offences of a similar kind.

46.  In various cases over the years the courts have identified other matters that may be regarded as aggravating factors.  In HKSAR v Lai Kam Tong and anor [2005] 1 HKC 232, the Court of Appeal said that, the fact that the robbery was premeditated and well planned was a serious aggravating factor and in HKSAR v Obiagwu Oluchukwu Christian [2011] 1 HKC 453 that the fact that the robbery was committed by a visitor to Hong Kong is also an aggravating feature.  Finally, in HKSAR v Wang Wei [2010] 5 HKC 45 the Court of Appeal said where the robbery involved the theft of the victims ATM card and the extraction from him of his PIN number then this was an aggravating feature.  The court went on to say at page 50G that “detention of a victim by a robber whilst his colleague goes off to secure cash from an ATM machine is a still further aggravating feature …”.  Clearly, the list of aggravating factors is not closed and from time to time this Court may add to it.

47.  Notwithstanding the assistance provided to trial courts by these sentencing guidelines and list of aggravating factors a trial judge still possesses considerable discretion in identifying an appropriate starting point in robbery cases.  In performing this task he will have to assess the seriousness of the case before him and in this regard he may derive some assistance from the comments of the Court of Appeal in the authorities we have mentioned.  They may enable him to place the case before him in a particular category or help him to identify the serious features present in the commission of the offence.

48.  But the cases can do no more than point him towards a particular range of sentence; they will not, other than in the most straightforward case, dictate his starting point.  More frequently the judge will find himself guided towards a broad sentencing range within which to exercise his sentencing discretion.  That is the position in respect of these applicants and that is why it does not avail the 2^nd applicant to point to sentences imposed in other cases, as his counsel has done with Lai Kam Tong and HKSAR v Li Cheng Hong & Ors CACC 202/2008; unreported, 30 April 2009, in order to advance his proposition that a 12 year starting point for the facts of this offence is manifestly excessive.  Because the facts of each case are different from others there are considerable limits to comparing sentences passed in one case with those passed in other cases.

49.  What can be derived from the authorities is that a starting point of 12 years’ imprisonment is at the high or upper end of sentencing for a head-bashing robbery and that sentences of this length would normally be reserved for the even more serious cases.  Can it be said that this robbery fell into this category?  In our view it can, for here, there were present a number of aggravating features the cumulative effect of which was to place this robbery in the serious, if not very serious, category for a robbery of this kind.  These features were: the careful planning behind the robbery; the sophisticated execution of it, involving the use of false number plates and pepper spray; the value of the property stolen, together with the fact that none of it was recovered; the use of weapons; the nature and degree of violence employed, namely a head bashing with a lethal weapon; and the injuries caused.  Taking into account the presence of all these aggravating factors we cannot say that a starting point of 12 years for this robbery was manifestly excessive.

Failure to distinguish the 2^nd applicant from D4

50.  However, the 2^nd applicant claims that even if such a sentence was appropriate for D4 it was excessive for him.  In support of this contention firstly, he says the evidence points to D4 playing more of a leadership role in the commission of the robbery and secondly, he claims he was not aware that D4 would be armed with a weapon or that the robbery would involve the degree of violence that was ultimately employed by D4.

51.  The starting point when sentencing persons involved in a joint enterprise crime is that generally no distinction is made between the participants based upon the role they played in the commission of the crime. This is simply a recognition that criminal activity that needs a number of persons for its successful execution will inevitably involve those persons in contributing differently to the successful execution of the enterprise.  Moreover, their conviction of a joint enterprise crime means that they have been found to have known the purpose of the enterprise and to have willingly lent their support to it, intending by so doing to commit the offence or offences for which the joint enterprise was formed.

52.  However, notwithstanding these considerations it may, nevertheless, be appropriate to distinguish between the roles of the participants.  The most common reason for doing so is because one of the individual accuseds has been proven to be the mastermind or a senior figure in the enterprise, as opposed to being a mere foot soldier employed to assist in carrying it out.

53.  Is there evidence on which it can be said that D4 occupied the former position in this robbery gang?  He was certainly not the mastermind as that person is known to have been a Mainland person who did not participate in the actual robbery.  Nevertheless, the 2^nd applicant points to D4 giving instructions in the course of the robbery and being the bearer of the lethal weapon which caused injuries to one of the victims.  However, in any kind of joint enterprise criminal activity instructions are given during its commission simply in order to ensure that everyone knows what is happening and what they should be doing.  That doesn’t necessarily elevate the person giving the instructions to a leader and consequently a member of the gang who should be punished more heavily than the others.  Here the robbery was over in a matter of several minutes and in our view the evidence does not go so far as to clearly show D4 to be occupying the kind of leadership position that would warrant distinguishing between him and the 2^nd applicant in terms of their respective involvements.

54.  The 2^nd applicant contends that his culpability should be judged by reference to what he knew before the robbery took place and the only evidence of this he submits is in his police interviews and in the evidence of D1.  In his interviews he said he was told that they would be hitting a person so that the mastermind could get back his “trunk of stuff”.  Each person would be paid HK$50,000 and he had been asked to recruit one or two more to help.  He was told by D4, whom he described as “Ah Man”, to put false number plates on the car, was given the pepper spray by him and was told that they may be stealing RMB 1-2 million.  He said that D4 was their leader.

55.  In his evidence D1 said that when he complained to the 2^nd applicant about the degree of violence employed, the 2^nd applicant replied:

“I also did not know but anyway we have done it.”

56.  At its highest the 2^nd applicant’s case shows no more than that he did not know what weapons were to be used or what degree of force might be employed.  He knew he was being paid a lot of money to apply violence to a person who was in possession of a highly valuable item.  The fact that the mastermind was willing to invest HK$50,000 per robber (a total of HK$200,000) was an indication of just how valuable the item to be stolen was.  No person in that situation can expect that he and his colleague will not be met with resistance and they must well know that when resistance is encountered they will be required to use force to overcome it.  After all, that is precisely why they are each being paid HK$50,000.  Furthermore, no person agreeing to participate in a criminal activity where violence is to be employed can be sure of what will happen once the violence erupts.

57.  All of these matters are commonsense and the fact that the 2^nd applicant adhered to his claim that he expected only a low level of violence would be employed does not mean that the judge is required to ignore what commonsense tells him and accept without demur the exculpatory statements of the offender; more particularly an offender whose defence at trial was that everything he said to the police was fabricated by them.  When assessing the culpability of the offender for the purpose of sentence the judge is entitled to have regard to the whole of the evidence and draw from it such inferences as are reasonably open on that evidence.  This, of course, is subject to the caveat that he must not draw any inference or come to any conclusion inconsistent with the verdict of the jury.

58.  As for D1’s evidence that the 2^nd applicant said “I also did not know but anyway we have done it”, this statement does not, it seems to us to be the words of a betrayed person who is shocked and angry that events have turned out completely contrary to what he was led to believe.  It is clear from what the 2^nd applicant said that he felt no distress or concern at what happened; effectively he is saying “what was done was done – that’s simply how the robbery went down.”

59.  We find no justification for treating the 2^nd applicant any more leniently than D4.

The 3^rd applicant

60.  The 3^rd applicant’s main complaint is quite a narrow one.  Effectively his counsel, Mr Chandler, is asserting that in exercising his legal right to challenge, unsuccessfully, the voluntariness of his record of interview, the 3^rd applicant is, thereafter, being punished for having done so if he is deprived of the full discount for pleading guilty.

61.  This argument is misconceived.  The appropriate punishment for an offender is, in fact, the starting point for sentence after trial.  That appropriate sentence is then reduced to allow for the mitigation that is advanced on his behalf and which is accepted by the judge.  The greatest mitigation, in the sense of providing an offender with the biggest discount, will usually be a plea of guilty, for it is set at one-third.  But the reason for the plea of guilty being such valuable mitigation is, in Hong Kong at least, less because it reflects any remorse by the offender, but more because of its value to the public interest.  Its value to the public interest has many components to it such as the saving of law enforcement and prosecutorial resources; the avoiding of inconvenience and distress to witnesses; the saving of judicial resources and the accompanying benefit of enabling those resources to be deployed in bringing to trial more quickly accused persons who may be in custody.

62.  The sentencing practice of giving a one-third discount for a plea of guilty and the policy underlying it was recently discussed in some detail by this Court in HKSAR v Ma Ming [2013] 1 HKLRD 813 where Yeung VP in giving the judgment of the court said at page 820, paragraphs 26 – 27:

“26. If unfruitful contest, delay and unnecessary expense of resources can be avoided, so that the court’s time can be allocated to cases which warrant more of its attention, thus ensuring that judicial proceedings will proceed more expeditiously and more efficiently, then giving the defendant who timely pleads guilty a one-third discount is a policy decision which serves the public interest.

  27.  A discount of one-third is quite a substantial discount.  One of the main purposes of the court giving this one-third discount to a defendant who pleads guilty is to encourage a guilty person to own up to the crimes he committed, so as to conserve the resources of the community and to ensure that justice can be administered more efficiently and matters can be concluded in the most expeditious manner.”

63.  But, although this quotation makes it clear that the public interest is the main purpose which the one-third discount serves, that does not mean it is the only purpose.  It also serves to reflect the standard mitigating features advanced on behalf of a defendant such as his cooperation with the police, his frank confession to his misdeeds, his prior good character (short of positive good character) and his remorse for his actions.  To obtain a discount greater than the one-third discount requires something more.  The position was explained by this Court in HKSAR v Wen Zelang [2006] 4 HKLRD 460 at page 464, paragraphs 18 - 19 where Yeung JA (as he then was) said:

“18. This Court has said on numerous occasions that the discount of one-third for those who plead guilty at an appropriate time is usually the full extent of the discount to be given. In HKSAR v Leung Shuk Man [2002] 3 HKC 424, it was stated (at pp.426-427):

… the appellant was given a one-third discount which is normally to be regarded as the high watermark of the discount accorded to a defendant showing remorse by pleading guilty, whether or not a defendant is able to claim previous “good character” in the sense of “clear record”. Positive good character may well entitle a defendant to a slightly enhanced discount such as in the example of an offender who has worked without payment for a charitable cause within the community. This appellant was entitled to no more than a one-third discount for her plea.

Similar sentiments were expressed in HKSAR v Lee Kwok Chuen (unrep., CACC No 445 of 2000, [2001] HKEC 959).

  19.    The situation, where positive good character may enable a defendant to receive a slightly higher discount are limited to situations of the kind we have set out in the passage cited from HKSAR v Leung Shuk Man [2002] 3 HKC 424.  There are, of course, other mitigating circumstances which will also lead to an increased discount.  These include, most notably, the voluntary repayment of ill-gotten gains in circumstances where these might not otherwise have been recovered and the provision by an offender of useful information to the authorities which may or may not include testifying against others, but this list is by no means exhaustive.”

64.  If the main purpose of the one-third discount is to benefit the public interest by encouraging an accused to plead guilty, then the earlier that plea is tendered the greater is the benefit to the public interest.  The corollary of this is that the later it is tendered the lesser the benefit to the public interest.  Clearly therefore, the extent to which the public interest benefits from a plea of guilty depends on when that plea is tendered.  This is reflected in England and Wales in a statutory framework, together with sentencing guidelines, in a discount which diminishes the later the plea is entered.  In Hong Kong we have drawn the line, much more generously some may think, at the commencement of the trial.  So, if a voir dire is held or a prosecution witness called on the general issue then from that moment onwards the accused is at risk of losing the benefit of a full one-third discount for his plea. Similarly, if he pleads guilty but challenges the factual basis of his plea by means of a Newton enquiry.  It is not a question of him being punished for exercising his legal rights; rather it is simply that by doing so he has devalued the benefit that would otherwise have accrued to the public interest by his plea.  When the main purpose that the discount in intended to serve, and it is a sizable discount, is the benefit to the public interest, there is nothing wrong in reducing the amount of that discount when, by his actions, the offender has reduced the benefit accruing to the public interest as a consequence of the late tender of his plea.

65.  There is therefore no merit in the submission that as a matter of legal principle reducing the discount was wrong.

66.  As to the amount of the discount, this was a matter within the discretion of the judge.  There is nothing to point to the exercise of the discretion having miscarried.  The amount of the discount granted by the judge was not inconsistent with authority.

67.  As to the other submission that the 3^rd applicant should have received a further discount for his clear record, we have already indicated that the authorities make it clear that allowance for a clear record is subsumed into the one-third discount for the guilty plea.[1] That remains the position even when the one-third discount is reduced to allow for a late tender of the plea.

68.  As to the claim by the 3^rd applicant that he feels a sense of grievance at receiving the same treatment as D4, we are of the view that that claim is without merit.  The 3^rd applicant carried and used the pepper spray.  He was an active and fully involved participant in the robbery. There is no basis for saying he should have been treated more leniently than D4.

Conclusion

69.  For these reasons we dismissed the 2^nd applicant’s application for leave to appeal against conviction and sentence and the 3^rd applicant’s application for leave to appeal against sentence.