R. v. CHAN YU TIN and Others

IN THE COURT OF APPEAL

1995, No. 147
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. These are applications for leave to appeal against sentence.

2. Four men were tried in the court below. Three of them now seek leave to appeal against sentence. They are the 1st, 2nd and 4th defendants. We will refer to them, as they were referred to below, as D1, D2 and D4 respectively.

3. D1 and D2 pleaded guilty on the first day of the trial, February 15 this year; while D4 pleaded guilty on the following day.

4. For some reason, D4 was sentenced on the 24th of that month; while D1 and D2 were sentenced three days later on the 27th after the fate of the third defendant was known. He had fought the case to the bitter end.

5. That split was a pity; and we do not know the reason for it. Looking at the record, it may well be that what Mr Saw for the prosecution thinks happened is what happened: the convenience of counsel for D4 was accommodated. If that be so, then what we say is this: the courts strive not to inconvenience anybody, but it is always important that a sentencing court gets the clearest possible picture of the relative culpability of all the accused. So, if it is at all possible, all accused should be sentenced on the same occasion.

6. In the result, the Judge (Deputy Judge Beeson) sentenced D1 and D4 to 9½ years' imprisonment each and D2 to 9 years' imprisonment.

7. Each applicant is a man in his 30"s. D1 had a very bad record. His previous convictions include one for robbery, two for burglary and two for theft.

8. D2 had never lived in Hong Kong. Not surprisingly, therefore, he had a clear record here.

9. D4's record includes a previous conviction for robbery.

10. Shortly stated, the facts of the present offence are these. On April 19 last year, the police foiled an armed robbery which these three applicants and another two men were about to commit with two loaded pistols.

11. For each applicant, the judge took a starting point of 15 years and gave a five-year discount, thus bringing the term down to 10 years. For some reason which is not entirely clear, D1 and D4 each received a further discount of six months and D2 received a further discount of one year.

12. When sentencing D4 on the 24th, the judge said this to him about his role:

"Apart from being privy to the plan generally, your task was to convey the two gunmen to the place where the robbery was to be carried out. You carried with you two buckets which were intended to be used to conceal the guns".

13. Then, when she came to sentence D1 three days later on the 27th, the judge concluded by saying that she considered his blameworthiness on a par with D4's. However, her opening remarks to D1 were as follows:

"You were clearly an organizer in respect of this offence. You collected the two gunmen when they arrived. You received guns from them. You sheltered D2 and D3 and with D4 orchestrated the others into the robbery plan. On the day fixed for the robbery, you collected the guns and later gave them to Wai so he could carry out the task of taking them to the building where the robbery was to take place."

14. When one studies the agreed facts, it becomes clear that the term "organizer" is indeed as apt to describe D4 as it is to describe D1.

15. As to D2's role, the judge said that he was not "a major player" although he was going to be "a gunman".

16. The sentences on D1 and D4 are within the appropriate range; and they are refused leave to appeal against sentence.

17. But it seems to us that D2 should receive at our hands a slight reduction so that the difference between his role and that of D1 and D2 be more accurately marked than it has been marked by the difference which the judge made. It could be said that all of them could have been sentenced by the judge more severely than she sentenced them. But there is a range within which judges pass sentence. And it would be self-deception to think that mathematical precision can be brought to bear upon these matters. Sentences of 9½ years on D1 and D4 are appropriate. And, having regard to their respective roles, we think that the sentence on D2 should be one year less than the sentence on D1 and D4.

18. Accordingly, D2's application for leave to appeal against sentence is granted. And treating that application as the appeal, we allow such appeal to the extent of reducing his sentence from 9 years to 8½ years. Although, it might at first blush look as if we were interfering in a minor respect with a sentence, that is not truly so. For it is, we think, necessary to do what we have done so as to bring about consistency in the treatment of these three men having regard to their respective roles.