THE QUEEN v. FOK KWONG YEE

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REASONS FOR JUDGMENT

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Nazareth V-P (giving the judgment of the Court):

1. Having heard counsel, we dismissed the application for leave to appeal against sentence and now give our reasons.

2. The applicant, Fok Kwong-yee, appeared before Deputy Judge Jackson in the High Court on 9th August 1996 and pleaded guilty to count 3, i.e. robbery, and count 4, i.e. conspiracy to rob. On 19th September 1996 he was sentenced to imprisonment for terms of 4 years on count 3 and of 3 years on count 4, two years of the latter to be served consecutively to the former, making a total of 6 years. He now seeks leave to appeal against sentence.

3. The facts relating to count 3 were that about 4.35 a.m. on the morning of 14th January 1996, a taxi-driver picked up the applicant at Sau Mau Ping Estate. When the taxi reached Ma Yau Tong Road, the applicant pointed a knife at the driver's chin and declared robbery. The driver gave the applicant HK$350 which the applicant took, alighted from the taxi and fled.

4. The facts relating to count 4 are that at about 2130 hours on 18th January 1996, another taxi-driver picked up the applicant and two other persons, one a female, at Kwun Tong and headed for Tseung Kwan O. The applicant was sitting in the front passenger seat and the other two in the rear. On the way the taxi-driver noticed the applicant taking out a paper cutter and when the applicant told him to drive to Ma Yau Tong Village, he became suspicious and told the three that he had to make a report to the police station first. He then drove to the Tseung Kwan O Police Station where he informed the police. The applicant and the two others were arrested after the police found two paper cutters under the rear seat.

5. Under caution, the applicant admitted having asked the female to go to rob with him, she was 14 years old and reluctantly agreed before boarding the taxi. The two paper cutters found in the taxi had been bought by him just before the incident with intent to rob the taxi-driver. The applicant also under caution admitted the robbery charged in count 3.

6. In sentencing the applicant, the Deputy Judge noted that the defendant has 10 previous convictions, mostly for dishonesty and possession of dangerous drugs, all committed within the previous three years.

7. On his behalf, counsel who then appeared for him, told the court that the applicant was willing to give evidence against his two co-accused on the conspiracy count. The trial being scheduled about a month later, the judge then adjourned the matter and at the same time called for a background report. In due course when the matter was resumed, the judge was informed that the applicant had indeed given evidence, and that as a result, partly at any rate, the female co-defendant was convicted. The background report, as the judge noted, contained absolutely nothing that was of any benefit to the applicant.

8. In sentencing the applicant the judge, having referred to the foregoing matters, continued:

9. Mr Andy Hung who appears for the applicant before us but who did not appear below, very properly does not question the starting point adopted on the third count i.e. the robbery charge, which accords fully with the guideline in R v Tran Van Anh [1993] 2 HKCLR 122, 124. Nor does he complain about the discount of 2 years on that count for the applicant's plea of guilty, which was the full and usual one-third. The only point he takes on the sentence of 4 years on the third count is in the context of the totality of 6 years to which we shall return.

10. It is to the sentence on the conspiracy charge in count 4, in itself and in relation to the totality that Mr Hung directs his submissions.

11. He complains first that the starting point of 4 years adopted by the judge was too high in respect of the offence of conspiracy. We reject that submission. The penalty for conspiracy to commit an offence as that here is assimilated to that for the offence. And, as here, "where the plan is seriously mounted, showing an attempt to carry out the actual offence, not too much distinction can be drawn between the attempt and the completed offence" per McMullin V-P in Attorney General v Chan Ka-shu, Application for Review No. 4 of 1984, unreported We add that although there the word "attempt" was used, that was done in the lay and not legal sense of that expression. There, although the kidnap had been planned and the conspirators had waited in their car to seize the intended victim, no actual attempt in the technical sense had been made. Clear evidence of the conspiracy came from one of the conspirators as here. What we concur in and adopt is that where the plan is seriously mounted and steps are actually taken to implement it, although falling short of an attempt in a legal sense, not too much distinction can be drawn between the attempt and the completed offence in assessing sentence. Upon that basis, the judge was entitled to, and indeed, in our view, cannot be faulted in taking the starting point he did.

12. Pursuing the 1st perfected ground of appeal, Mr Hung submits that the discount for the applicant's early plea of guilty on the fourth count was only 25% and that the judge erred in not giving the usual one-third, which he gave for a similar plea to the third count. No reason, he says, was given for that discrepancy nor for the failure to give a sufficient discount for the applicant's cooperation with the authorities and his actual assistance in the way of evidence against the female co-conspirator. For such assistance the discount could be up to 50% (R v Chan Fu-kui [1986] HKLR 967. The judge, he submits, erred in not giving a discount of about 40%.

13. It is convenient to address those submissions in the context of Mr Hung's final submission on the totality principle, upon the basis of which and of his earlier contentions, he submitted that the overall sentence of 6 years was manifestly excessive.

14. He pointed to the following additional matters:

15. It is right that the discount for the plea to the third count is somewhat less than the usual one-third. That was to some extent mitigated in the overall context by one year's imprisonment not being made consecutive. In any case, a one-third discount is neither a right nor a fixed formula; the court has a discretion. We do not see that we would be justified in intervening upon this point alone. This complaint, like the second, would be better addressed in the context of the totality of the two sentences.

16. Turning to the second ground, i.e. that the applicant received insufficient discount for his cooperation and assistance, this is a matter in the discretion of the judge. Having regard to the applicant's bad record, the judge was entitled to give a discount of less than the 40% or even 50% he could conceivably allow. It may be noted that upon the overall starting period of 10 years a discount of one-third would have produced a total of only 4 months more than the total discount actually allowed. That said, this Court has repeatedly discouraged a mathematical approach (see e.g. Attorney General v Wong Kwok-wai [1991] 2 HKLR 384, 387C).7

17. We proceed then to Mr Hung's final submission i.e. that in totality the sentence was manifestly excessive. Although he conceded that it was proper for the two sentences to be consecutive (see Attorney General v Cheung Kai-man Dominic [1987] HKLR 788, 795) Mr Hung submitted that the very short period between the offences was a significant mitigating factor. We would not dissent from that contention if the duration of the interval tended to erode the separate and distinct nature of the offences and show that they were not part of the same transaction so that concurrent sentences were called for. But it does not.

18. Mr Hung relies also upon the plea of guilty being accepted by the judge as not being a late plea, the value of the applicant's evidence against the female conspirator; and the only evidence against the applicant on the robbery count being his admission.

19. Looking back in the last instance at the totality of 6 years, we do not think it is not just and appropriate, or that it is manifestly excessive. That suffices to dispose of the application for leave.

20. But it has to be mentioned that Mr Hung had one last submission. It was based on the proposition that a sentence should be reduced even though it is in the result appropriate if the starting point is too high or the discount is too low. Since we consider the starting point and discount to be right, the submission does not get off the ground. In any event, we are concerned with whether a sentence is ultimately appropriate and not just the steps on the way to the result.

21. For reasons given we dismissed the application.