THE QUEEN v. NG MING WAH AND OTHERS

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JUDGMENT

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Mortimer JA (giving the judgment of the Court): The three applicants in this case were convicted an offence of robbery before Deputy Judge Geiser in the District Court. D1 Ng Ming-wah and D3 Koo Ka-lok were convicted after trial on 10 March 1995. Lam Kwong-yiu D2 pleaded guilty at the outset on 24 February 1995. The judge sentenced the D1 and D3 to 5 years' imprisonment and D2 who had pleaded guilty 4 1/2 years' imprisonment. D1 and D3 applied for leave to appeal against their convictions. We deal first with those applications.

The facts

2. The facts were that on 20 January 1994 at about 3 a.m., Mr Yung Yau-keung and his girl-friend were sitting on a bench near the jogging trail in Victoria Park. They were surrounded by 3 robbers. One carried a knife with an 8 inches blade. They announced robbery and stole from them property which included HK$880, a wallet, bank cards and a watch. Mr Yung had his glasses taken off and stepped on before they left. During the robbery he was repeatedly hit on his back until he took out all his property. The girl's handbag was searched during this one of the robbers said "don't disturb the girl anymore." Mr Yung sustained the abrasions to the side of his face caused when the glasses were torn off.

3. The robbers then ran away. The two victims left the park and hailed the police vehicle. They got in and a search for the robbers began. They gave a description and 20-30 minutes after the incident Mr Yung pointed out three people in the street opposite to the City Garden whom he said looked like the robbers. Three police officers alighted and gave chase. One officer with the assistance of the another who was on foot patrol caught D1 who, in the course of his capture, sustained some injury.

4. According to the police officers D1 had on him the victim's wallet and its contents. D2 was also chased and caught by other officers and he admitted his part in the robbery at once. He disclosed in an interview with the police the name of the third robber.

5. Consequently sometime later on 4 April 1994 D3 was arrested and taken to Aberdeen Police Station where he made a cautioned statement. In that cautioned statement he said:

"That evening I together with Ah Yiu (and) Ah Ming, (the other two defendants), the three (of us) went to Victoria Park. Yiu Chai was in need of money to spend. Therefore I accompanied them to go into Victoria Park. At that time, I sat on a bench while the two of them robbed a couple. After they committed the robbery, - I fled with them."

6. The victim was unable to recognise any of these assailants but was able to say that there were three and that at the time of the robbery, there was no one else near in Victoria Park.

7. At the trial there was a discrepancy in the evidence between the police officers and the victim as to which of the robbers was carrying the wallet. The victim's was that the wallet was found on D2 - described as the robber standing up - whereas a number of police officers said that it was found on D1. The judge considered that discrepancy with some care and, having considered the matters put before him by counsel for the defendant, he accepted the evidence of the police officers.

8. Neither defendant chose to give evidence so the prosecution evidence remains unexplained.

9. Both defendants submit that they were not placed on an identification parade and that was unfair. There is nothing in that point because the victim never at any stage suggested that he could identify any of the accused. There would have been no point in holding an identification parade.

10. As far as the discrepancy is concerned that was a matter of fact for the judge. He considered the evidence and decided that it was proper on the proper standard and burden of proof to accept the police evidence. It is not open to this court in the circumstances to re-open that enquiry as the applicant would have us do.

11. The suggestion by D3 that there were discrepancies and doubts in the evidence upon which he can rely to suggest that there may have been a 4th robber are equally without foundation.

12. In fact on the evidence both the applicants faced an overwhelming case based - so far as the D1 was concerned - upon being found with the proceeds of the crime upon him. Also in D3's case based upon the circumstantial evidence in his admission that he had been present at the robbery together with the evidence of the victim that there were just three robbers and no one else was in the vicinity.

13. The application of D1 and D3 for leave to appeal against their convictions for those reasons are refused.

D2's Application on sentence

14. D2 Lam Kwong Yiu applies for leave to appeal against his sentence of 4 1/2 years. Mr Richard Wong on his behalf takes two points. The judge took as his starting point 5 years' imprisonment. On giving this applicant 4 1/2 years' imprisonment Mr Wong submits that the applicant was not given sufficient discount for his plea of guilty and nor did the judge give him credit for his assistance to the police in disclosing the name of D3 - without which he would never have been arrested.

15. In taking 5 years as the starting point for a robbery of this kind the judge was in error. The guidelines in Mo Kwong Sang indicate that with three men using a knife, committing robbery in an isolated place in the middle of the night six years would have been more appropriate. However a judge does have considerable discretion in his choice of sentence and we do not think it would be just to this applicant in the particular circumstances to take 6 years' as the starting point for him on appeal when the judge did not do so. He has had to come to this court in order to achieve a proper discount for his plea of guilty and for his assistance to the police.

16. In giving discount for the plea of guilty the judge did not allow sufficient discount. Again the judge has considerably wide discretion as to the discount he should give but here the applicant indicated his acceptance of guilt at the moment he was arrested and never deviated from that throughout. It is true to say that he was caught more or less red-handed but it is the practice of the court to give a substantial discount for a plea to recognise the remorse shown by a plea of guilty and the saving to the public. Also in this particular case the judge ought to have given a further discount for the assistance given to the police. He did not do so.

17. In these circumstances to give proper allowance for those two matters we give the applicant leave to appeal against his sentence, we treat the application as the appeal, we allow the appeal and substitute a sentence of 3 years' imprisonment.