R. v. HO Tung-shing and Others

1994, No. 19
(Criminal)

H E A D N O T E

Although such cases are rare, there are cases in which life imprisonment, even when it is not made mandatory by statute for the offence involved, is the only appropriate sentence even though the defendant has pleaded guilty.

In general, a discount in the region of 25 to 30% is the one which a plea of guilty should - and normally does - attract.

IN THE COURT OF APPEAL

1994, No. 19
(Criminal)

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J U D G M E N T

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Bokhary, JA (giving the judgment of the Court):

1. These are applications for leave to appeal against sentences passed by Leong J on the leader and members of about as dangerous a gang of armed robbers as have ever been before our courts.

2. The 1st defendant HO Tung-shing is a man in his mid-30s.

3. On November 22 last year, he pleaded guilty to : 16 counts of robbery; three counts of attempted robbery; two counts of shooting with intent to avoid apprehension; one count of possession of firearms and ammunition at the time of committing an offence; and one count of possession of firearms and ammunition without a licence.

4. Sentence was passed in respect of those convictions on December 20 last year. It was life imprisonment. That sentence was arrived at by way of 17 life terms: one on each of 15 counts of robbery and two counts of shooting with intent to avoid apprehension. Concurrently, he also drew : 14 years for another robbery; 20 years for each of three counts of attempted robbery; six years for possession of firearms and ammunition at the time of committing an offence; and 10 years for possession of firearms and ammunition without a licence.

5. On December 31 last year, he was acquitted of murder but convicted of manslaughter, for which he drew another concurrent term, this one of 25 years' Imprisonment.

6. The 2nd defendant TSANG Chi-fung is a man in his early 30s.

7. On March 19 last year, he pleaded guilty to five counts of robbery. Sentence was passed on December 29 last year. He was sentenced to a total of 22 years' imprisonment by way of concurrent terms of that duration on each count.

8. The 4th defendant LEE Chun-man is a man in his late 20s.

9. On March 19 last year, he, too, pleaded guilty to five counts of robbery.

10. On him, too, sentence was passed on December 29 last year. He, too, was sentenced to a total of 22 years' imprisonment by way of concurrent terms of that duration on each count.

11. The 5th defendant TANG Yuk-tong is a man in his early 30s.

12. On December 15 last year, he pleaded guilty to four counts of robbery.

13. Sentence was passed on him on December 20 last year. He, too, was sentenced to a total of 22 years' imprisonment by way of concurrent terms of that duration on each count.

14. The 6th defendant Lee Tak-wah is a man in his early 30s.

15. On December 20 last year, he pleaded guilty to four counts of robbery. On the same day, a Hospital Order was made in respect of him.

16. All the defendants are represented before us by Mr Oderberg. But as far as the 6th defendant is concerned, Mr Oderberg has not advanced any argument. What he has done - and very properly done - is to offer to assist us in so far as we may feel any disquiet about the Hospital Order made. As to that, the short answer is that we feel no disquiet about that order whatsoever. It was the form of treatment urged - and rightly urged - by counsel for the 6th defendant in the court below. And what we hope is that he will understand that, in the light of his mental condition, the Hospital Order made in respect of him is as much for his own good as anybody else's.

17. On behalf of the other defendants, Mr Oderberg did offer arguments.

18. As far as the 1st defendant is concerned, Mr Oderberg, in the skeleton argument which he helpfully prepared, concludes thus:

"It is incumbent upon the Courts when sentencing to bear two factors in mind:

(a) To demonstrate that an Accused will benefit in terms of sentencing if he pleads guilty at an early stage and therefore saves Court time and money as well as inconvenience to witness.

(b) To demonstrate an incentive to robbers and like criminals that there is a measurable difference, in terms of sentencing, between killing and not killing a victim in the course of committing robberies.

In failing to give effect to the above two factors, the Learned Judge has erred in law and has undermined their importance."

19. That is how it is put.

20. Now, whatever the force of that thinking, or any part of it, in general, the fact remains that this is a wholly exceptional case.

21. In The Queen v. O'Dwyer (1988) 86 Criminal Appeal Reports 313, the Lord Chief Justice, giving the judgment of the Court of Appeal (Criminal Division), said this (at p. 315):

"The three main criteria for imposing a life sentence are these: first of all the offence or offences are in themselves grave enough to require a very long sentence; secondly, where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and thirdly, if the offences are committed, the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence."

22. That approach was adopted by this Court in The Queen v. Pang Chung-wai, Criminal Appeal No. 7 of 1992, May 26, 1993 (unreported). There, Litton JA, giving the judgment of the Court, said (at p. 9) that those criteria are "equally applicable in Hong Kong".

23. Only one more case need be looked at before turning to the facts. That case is the decision of this Court in The Queen v. Cheung Hing-biu [1984] HKLR 87 in which Silke VP, giving the judgment of the Court, said (at p. 94) that:

"When one goes into the range of thirty years and over then an indeterminate sentence must obviously lie for consideration. When a court comes to the conclusion that life imprisonment would be proper, factors such as pleas of guilty, co-operation with the police and remorse, if it exists, have little relevance in the sentencing process. A plea does most certainly merit a discount - it saves time and expense and it avoids for witnesses the ordeal of giving public evidence - but that only where the tribunal decides upon a determinate sentence in first place."

24. Turning to the facts of this case, there is little need to resort to adjectives. The facts speak for themselves. The catalogue of offences already recited tells half the story. It can be completed by observing that, having embarked on a life of crime early, the 1st defendant became the mastermind of this highly dangerous gang of armed robbers who committed a series of offences of the most organised kind in which well over a hundred million dollars of property was obtained, and in which one innocent person has been left paraplegic and another dead. That last observation can be made without exhausting the list of persons who were shot by this man. He led this gang and, to his discredit for the whole enterprise was discreditable, he led it from the front.

25. Dwelling further upon the facts is unnecessary. Although such cases are rare, there are cases in which life imprisonment, even when it is not made mandatory by statute for the offence involved, is the only appropriate sentence even though the defendant has pleaded guilty. This is such a case. To deal with this man other than in the way in which the trial judge dealt with him would be a failure in the courts' duty to protect the public.

26. His application for leave to appeal against sentence is dismissed.

27. Dealing with the remaining sentences, 22 years in respect of the 2nd, 4th and 5th defendants, the first thing to note is that, in respect of each of these three armed robbers, the judge took a starting point of 24 years' imprisonment. Quite possibly, a slightly higher starting point would have been justified had the judge selected one. But the one which he selected is nevertheless within the range from which he had to select. The problem is that when one looks at the discount which he gave, it is a very slight one : 8.3% is counsel's calculation, which appears to be correct in terms of mathematics.

28. What Mr Oderberg submits is that the discount which the judge gave was contrary to the established principle that a discount in the vicinity of 25 to 30% is normally given for a plea of guilty.

29. In general, a discount in the region of 25 to 30% is the one which a plea of guilty should - and normally does - attract. It seems to us that in this case, the judge did err in respect of these three men when he sentenced each of them to 22 years' imprisonment, erring in that he failed to give them sufficient discounts for their guilty pleas.

30. All things considered, applying the appropriate guilty plea discount to the starting point selected by the Judge, we think that each of these three men should receive a term of 18 years' imprisonment. Treating their applications for leave to appeal against sentence as the appeals against sentence themselves,

we allow those appeals to the extent of reducing each of those 22-year terms to a term of 18 years' imprisonment.

31. That disposes of this case, save for us to express our indebtedness to counsel on both sides of their assistance.