R. v. YU HONG KIT

IN THE COURT OF APPEAL

1995, No.323
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The applicant faced two counts before Deputy Judge Wesley Wong. The 1st count was a count of robbery and he was also charged with possession of firearm or imitation firearm at the time of committing a robbery.

2. It is not quite necessary to dwell upon the particulars of the charges. The applicant was so charged with his co-defendant who was also indicted for these two identical offences. The applicant pleaded guilty and he gave evidence for his co-defendant who was convicted after trial.

3. In sentencing the applicant, the judge took a starting point of 8 years for the 1st count and allowed the applicant only a 20% discount. A similar exercise was adopted for the 2nd count: 12 years was taken as a starting point and a like 20% discount was given to the applicant. Consequently, he was sentenced to 6 1/2 years on the 1st count and 9 years and 7 months on the 2nd. Both sentences were ordered to run concurrently. He is serving a term of 9 years and 7 months.

4. In giving the applicant a 20% discount instead of the usual 30% or thereabout, the judge said this:

"You have not shown sufficient remorse by giving evidence for the 2nd Defendant whose evidence must have been rejected by the jury."

5. After his conviction, the co-defendant of the applicant took the matter to the Court of Appeal which ordered a re-trial. In his re-trial, the applicant again offered to give evidence for this co-defendant, but he was acquitted on a no case to answer.

6. The applicant himself felt aggrieved by his sentences. He sought leave to appeal against them but for the reasons given, he withdrew that application. After the acquittal of his co-defendant, the applicant now seeks leave to revive his application for leave to appeal against sentence, this time out of time. He also applies for further evidence to be admitted.

7. Those preliminary applications are not really resisted by the Crown. On behalf of the applicant, it is submitted that the subsequent acquittal of his co-defendant had virtually stood the basis for the judge's approach in sentencing on its head. Therefore, it may be said that this is not so much an appeal mounted on an error of the judge but an appeal which is primarily sought to be supported by the turn of events. The applicant's co-defendant is now a man acquitted of the same offences, whose defence of which the applicant had assisted in the first trial, and the applicant offered again to assist in his re-trial. It can no longer be said, as did the judge, that the applicant had not shown sufficient remorse by giving evidence for his co-defendant whose evidence must have been disbelieved by the jury.

8. Apart from the fundamental concept that no man should be discouraged from testifying in a court of law, the turn of events has rendered, in any case, the judge's rationale in his sentencing insupportable, hence the applicant should not be deprived of his normal discount for a guilty plea. There is no complaint made on his behalf as to the starting point for the 1st count or that for the 2nd count. The judge took 8 years as a starting point for his 1st count and 30% discount would have brought it down to 5 years and 4 months. A starting point adopted by the trail judge for the 2nd count was 12 years. A like discount would have reduced it to 8 years. For reasons we have given, we adopt the same exercise. In the event, his sentences for the 1st and 2nd counts should be reduced to a term of 5 years and 4 months and 8 years respectively. Both sentences are to run concurrently.

9. We admit the further evidence in this application. We grant leave to the applicant to appeal out of time. We treat his application for leave to appeal against sentence as the appeal itself. We allow it and reduce the sentences for the 1st and 2nd counts to 5 years and 4 months and 8 years respectively. In total, the Applicant is to serve a term of 8 years instead of 9 years and 7 months.