R. v. TSE KWOK YUEN

IN THE COURT OF APPEAL

1995, No.488
(Criminal)

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J U D G M E N T

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Power,Ag. C.J.(giving the judgment of the Court):

1. This applicant faced one count of conspiracy to rob. It was alleged that he and others had conspired to commit a robbery at the Wah Tung Warehouse at No.4, Tung Yuen street, Kowloon. He pleaded not guilty to that charge and was found guilty after trial before Seagroatt J. and a jury and was sentenced to seven years' imprisonment. He now seeks leave to appeal against that sentence out of time.

2. In his cautioned statements, which were the principal evidence relied upon by the prosecution, he said that it was not his idea and that another one had told him "to come to do it" and that he was "only to help by keeping watch outside the warehouse and keep an eye on the goods vehicle". He added in the second cautioned statement that he had not been told about the full details of the robbery plan beforehand and that it was being done to deceive the insurance company. He said that he "had never been informed of the choppers and guns at all".

3. Mr. Holland, who appeared for him at the trial, in mitigation asked the court to bear in mind the suggestion made in those cautioned statements that the applicant had been recruited late for the conspiracy and had no knowledge that firearms and choppers were to be used.

4. The facts before the court indicated that the robbery was probably planned and organized by a police informer who from the outset intended it to fail.

5. The trial judge when sentencing said:

"..... the principle in particular being the fact that circumstances which amount to entrapment can afford material for mitigation and sentence.

It was intended by the informer that this planned robbery should not succeed. That informer may well have been the prime mover. It didn't succeed. Indeed, it may have been set up in order to secure the arrest of these four defendants. What the motivation was I do not know. It may have been simply to enable the informer to maintain his status as such and perhaps benefit financially.

All planned robberies, however, where weapons are intended to be used are serious offences. But this conspiracy is not at the top of its category though there are aggravating features.

The 4th defendant convicted after trial stated that he had no idea weapons were to be used although watchmen were to be tied up. His job, he told the police, was to act as a driver. He has a criminal record but is not to be sentenced for that. On the other hand, he cannot and does not claim in mitigation good character.

Taking all the circumstances into account, in my view the appropriate sentence for him is one of seven years imprisonment."

The judge went on:

"The remaining three defendants are to be treated as of good character. They all three pleaded guilty to the offence and that is a matter of considerable importance and not a little courage. If they had been convicted after trial, I would not have distinguished between the roles of all four defendants and the sentence would have been one of seven years. But because of all the matters urged by way of mitigation, the plea of guilty, their character and the youth in respect of the 1st and 2nd entrapment which is very well made, they are all in my view entitled to substantial discount and the sentence will be one of three-and-a-half years each."

It is clear the judge gave considerable weight to the element of entrapment when sentencing the three defendants who pleaded guilty and gave each a discount of about 14 months therefor. He gave no credit on account of entrapment to the applicant. We think this must have been an oversight as, clearly, the applicant's participation was as much the result of entrapment as was that of the other offenders. We are satisfied that he is entitled to a justifiable sense of grievance that entrapment was not taken into account in his case. His application for leave to appeal against sentence out of time is, therefore, allowed. The hearing of the application is treated as the hearing of the appeal. The appeal is allowed and his sentence of seven years is ordered to be varied to one of six years.