HKSAR v. CHAN CHEUK HO

CACC 145/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 145 OF 2000

(ON APPEAL FROM DCCC NO. 885 OF 1999)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. On 20 December 1999, the Applicant pleaded guilty in the District Court to three charges: two of robbery and one of making off without payment. In due course, he was sentenced by Judge Wright to 50 months' imprisonment on each of the robberies, to be served concurrently with each other. On the charge of making off without payment, he was given an absolute discharge, but ordered to pay compensation of $30.00 to the taxi driver to whom the charge related. He now applies for leave to appeal against the sentences on the robbery charges.

The facts

2. The two robberies to which the Applicant pleaded guilty were taxi robberies. They occurred in July 1999 at night within two days of each other. On the first occasion the Applicant was with two other men; on the second he was with three other men. On each occasion, when the taxi driver stopped at the destination to which he had been asked to drive, a piece of cord was placed round his neck (presumably from behind) causing him to choke, and a sharp object was held to his neck. On neither occasion did the taxi drivers suffer any injuries, but they were relieved of personal belongings and cash, and in the first robbery the ignition keys were taken as well. On each of the robberies, all of the robbers were carrying a sharp object of some kind as a weapon.

The procedural history

3. The two men who were with the Applicant on the occasion of the first robbery had been charged, along with the Applicant, with both robberies. When all of three of them first appeared before Judge Wright on 16 December 1999, the Applicant's co-defendants pleaded guilty to the first robbery, and the charges relating to the second robbery in respect of them were ordered to be left on the court file. They indicated their willingness to testify against the Applicant, and to co-operate with the police in respect of the fourth man involved in the second robbery. No pleas were taken from the Applicant on that occasion because the judge was told that the Applicant no longer wanted his then legal representatives to represent him. The hearing was adjourned for four days to enable the Applicant to obtain fresh representation and for the offers of assistance from his co-defendants to be considered.

4. There is a minor difference in recollection as to what happened when the case next came before Judge Wright on 20 December. The judge's recollection, according to his Reasons for Sentence produced on 3 April 2000 when he actually sentenced the Applicant and his co-defendants, was that the Applicant was still unwilling to enter pleas, and that he only entered pleas of guilty that afternoon after a further delay. The recollection of the Applicant's solicitor, however, is that the prosecution was informed that morning that the Applicant was prepared to plead guilty to the first of the robberies and the charge of making off without payment. The case was stood down for a short while for the prosecution to consider whether those pleas would be acceptable, and within a short time the court was informed that the Applicant would be pleading guilty to both robberies. The only reason why the pleas were not taken then but were taken in the afternoon was to enable a summary of the facts to be agreed.

5. Be that as it may, since the Applicant and his co-defendants were either at school or at college and were about to sit examinations, the judge deferred sentence and extended their bail. There were then further adjournments because a fourth man had been arrested in connection with the second robbery. He was tried and convicted, the Applicant's two co-defendants having given evidence in that trial. Eventually, on 14 March the judge adjourned sentencing yet again to enable reports to be prepared on the suitability of all three of them for detention in a training centre, and in relation to the Applicant's co-defendants (who were younger than the Applicant) on their suitability for detention in a detention centre. It was when the Applicant and his co-defendants next appeared in court on 3 April that the judge passed sentence on them.

The Applicant's expectations

6. This procedural history is relevant to two points taken by Mr Peter Duncan on behalf of the Applicant. The first is that the judge's request for a report on the Applicant, following the long period during which the Applicant had been on bail both before and after his pleas of guilty, created in the Applicant's mind an expectation that, if the report showed him to be suitable for detention in a training centre, such a sentence would be passed. As it was, the report did indeed show the Applicant to be suitable for detention in a training centre, and it referred to the efforts which the Applicant had made to rehabilitate himself between his release on bail on 13 August 1999 and his remand in custody on 14 March 2000 for the preparation of the report. In this connection, Mr Duncan relied on Gillam (1980) 2 Cr. App. R. (S) 267, in which it was observed that all the signs at trial had pointed to the imposition of an immediate custodial sentence. Nevertheless, Watkins LJ said at p. 269:

"For reasons best known to himself [the judge] decided against that course but to request the production of a report with a view to considering whether or not this man should perform community service. There was therefore created in the appellant's mind an expectation, not unnaturally, of performing that service if the probation officer and others who were called upon to assist in the production of the report were disposed to recommend such a course to the court. It was recommended. When a judge in these circumstances purposely postpones sentence so that an alternative to prison can be examined and that alternative is found to be a satisfactory one in all respects the court ought to adopt the alternative. A feeling of injustice is otherwise aroused."

Although Gillam was a case in which the sentencing court had to decide whether a custodial sentence should be imposed at all, there is no reason why the reasoning underlying Gillam should not apply to cases involving young offenders where the court is considering what form of custodial sentence to impose.

7. The truth of the matter is that it all depends on what the defendant has been led to expect, and that applies particularly to young offenders who commit serious offences and who, if they were adults, would undoubtedly be sentenced to lengthy terms of imprisonment. Thus, in Moss (1983) 5 Cr. App. R. (S) 209, Croom-Johnson J (as he then was) said at p. 213 that with a young offender the court may wish

".... to explore all the sentencing alternatives while keeping an open mind about what will be the appropriate disposal in the end. There are many cases where a social inquiry report recommends probation or a non-custodial sentence, which the sentencing judge for good reasons thinks to be inappropriate.... If the judge makes it clear that in asking for a report, or in exploring one possibility, he is not holding out any promise or expectation that a favourable report will necessarily lead to any recommended disposal being adopted, there can be no sense of injustice if he ultimately decides, after mature consideration, on some other disposal. But if, as in Gillam, there is something in the nature of a promise, express or implied, that if a particular disposal is recommended it will be adopted, then a sense of injustice will be created if it is not."

In other words, any expectation which the ordering of reports might have created in the mind of the defendant may have been completely neutralised by what was said to the defendant when the reports were ordered.

8. We do not have a note of what the judge said when he ordered the reports. Certainly, Mr Duncan does not rely on any particular language which the judge used. It is, we think, sufficient for us to state that the mere ordering of reports by a judge in the case of a young offender who has been on bail for some time since tendering his pleas of guilty does not of itself amount to an implied promise that a particular disposal will be adopted if it is recommended.

Disparity

9. The Applicant's two co-defendants were both ordered to be detained in a training centre, and Mr Duncan's next point was that the Applicant has a real and justified sense of grievance over not being sentenced in the same way as them. That argument assumes that there was such parity in culpability between the three of them that the disparity in their sentences was not justified. We do not agree. The Applicant pleaded guilty to two robberies, whereas they pleaded guilty to one (even though, by their evidence in the trial of the fourth man, they were admitting to having been involved in the second robbery). The Applicant was almost 17 at the time of the offences, whereas they were almost 16 and just 15. They had pleaded guilty at the first opportunity on 16 December, and had subsequently given evidence at the trial of the fourth man on the second robbery, whereas the Applicant had only pleaded guilty when he knew that they were going to testify against him. In our view, the judge was entitled to treat these factors as justifying a difference in treatment between the Applicant on the one hand and his co-defendants on the other.

The appropriateness of sentences of imprisonment

10. The question still remains whether it was wrong in principle for the judge to impose sentences of imprisonment on the Applicant rather than an order for detention in a training centre. Since robbery is an "excepted offence" in Schedule 3 to the Criminal Procedure Ordinance (Cap. 221), the requirement in section 109A(1) of the Ordinance - that sentences of imprisonment could not be imposed on the Applicant unless no other method of dealing with him was appropriate - did not apply. Nevertheless, the judge was acutely aware that he was dealing with a young offender. In his Reasons for Sentence, he said:

"I am deeply conscious of the fact that whatever decision I make now may affect each of these Accused for the rest of their lives."

And a little later on, he said in relation to the Applicant:

"I am fully aware of the fact that he has been found to be suitable for admission to Training Centre. I am equally alive to the emphasis that is placed on rehabilitation where young persons are concerned. I am aware that that is a concern shared by the Department of Correctional Services and that good facilities exist to encourage younger offenders to make something of themselves whilst imprisoned."

The judge clearly thought long and hard whether the offences which the Applicant had committed were so serious that no real alternative to prison existed.

11. In our view, the imposition of sentences of imprisonment could not be said to be wrong in principle if, as the judge must be taken to have found, the time which the Applicant could have expected to spend in a training centre would not have reflected the gravity of his crimes. On that issue, we do not think that the judge erred. It has frequently been said that taxi drivers are particularly vulnerable to robbery, especially those who ply for hire late at night or who pick up or drop passengers at isolated places. A clear record or comparative youth (unless it be extreme youth) will count for little by way of mitigation. We note, of course, Mr Duncan's points that the Applicant had until recently not had the benefit of much support or supervision at home, and that the report on him revealed a number of positive features - though it would be na?ve to suppose that his sudden application to his studies might not have been prompted by what the judge called "the spectre of these proceedings looming".

The length of the sentences of imprisonment

12. All that remains, then, is whether the length of the sentences of imprisonment, when viewed in their totality, was manifestly excessive. No issue is taken with the starting point which the judge took of 6 years' imprisonment. It was within the appropriate bracket for offences of this kind when a measure of violence, although not serious violence, is used and no injuries are caused: see, for example, R. v. Tran Van Anh [1993] 2 HKCLR 122. The only question is whether the discount which the judge gave was too little. He reduced the sentences from their starting point by 25% to reflect the Applicant's pleas of guilty, and reduced them by a further 4 months to reflect his clear record. It is here that the second point arising out of the procedural history is relevant. The judge gave the Applicant only a 25% discount for his pleas of guilty because he regarded the pleas as late ones. In doing so, it is said that the judge had forgotten what had actually happened on 20 December.

13. In our opinion, even if the Applicant had been prepared to tender pleas of guilty on the morning of 20 December, the fact is that he did not do so on 16 December when he had had the first opportunity to do so, and only did so when he knew that his co-defendants were prepared to give evidence against him. That was an entirely rational basis upon which the judge could, and did, reduce the discount to which the Applicant would otherwise have been entitled.

Conclusion

14. For these reasons, the sentences imposed by the judge cannot be characterised as either wrong in principle or manifestly excessive, and this application for leave to appeal against sentence must be refused. However, before departing from the case, we wish to pay tribute to the Reasons for Sentence which the judge produced. They demonstrated in a clear and comprehensive way the unimpeachable process of reasoning by which the judge reached his conclusion. They are in our view a model of their kind.