IN THE COURT OF APPEAL
1994, Nos. 18, 20 & 21
Coram : Hon. Macdougall, V.P., Penlington, and Liu, JJ.A.
Date of hearing : 15 December 1994
Date of delivery of judgment : 16 March 1995
J U D G M E N T
Penlington, J.A. (giving the judgment of the Court):
1. These are applications for leave to appeal against sentences passed by Leong, J. on different dates in relation to armed robberies, mainly of jewellery shops. They related to Criminal Appeal Nos. 18, 20 and 21 of 1994 but as similar principles applied in each case, by consent, they were heard together. Mr. Andrew Macrae appears for each applicant on the instructions of the Director of Legal Aid and for the Crown we were assisted by Mr. Grenville Cross, Q.C. and Miss Lily Ho.
2. Chan Man-chi (A1) pleaded guilty to five counts of robbery and was sentenced to 12 years' imprisonment on each count, all sentences to be concurrent.
3. Briefly, the agreed facts were that, on 19th February 1987 at 11:25 a.m., A1 and another man held up the staff of the Kit Shing Watch Company in Yuen Long. The other robber produced a "pistol-like object", and he and A1 escaped with over $102,000 worth of Rolex watches. None of which have ever been recovered.
4. On 19th March 1991, A1 together with others robbed the Chen Brothers Jewellery Shop in the Mandarin Oriental Hotel Shopping Arcade, and again a pistol-like object was used to threaten the staff members. HK$250,000 and 3 million Japanese Yen was taken plus jewellery valued at over HK$6 million. Of the items that were stolen, only one pair of earrings worth HK$50,000 which had been pawned by one of the robbers, was recovered.
5. On 1st May 1991, three men, one of whom was A1, again used a pistol-like object to threaten the employees of the Himmy Jewellery Company in the Regent Hotel Shopping Arcade. Jewellery worth HK$3,244,000 was stolen, none of which has been recovered.
6. On 6th June 1991, A1 was again one of six persons who used two pistol-like objects to rob the Jewellery Flair shop at 36 Queen's Road Central. Jewellery valued HK$1,518,000 was stolen of which only one necklace worth HK$10,000 was recovered.
7. On 20th July 1991, five men, one of whom was A1, robbed the Ricco Ricco jewellery shop at The Mall, Pacific Place, Queensway, Hong Kong. Cash and jewellery to the value of HK$12,435,000 was taken. Again, pistol-like objects were used to threaten the staff.
8. The applicant has previous convictions. These were for theft in 1975, membership of a triad society in 1977, three charges of robbery in 1982 and one offence of robbery and one of attempted burglary in 1987. He was aged 32 at the date of his conviction and was unmarried. It was accepted that he did not himself carry any real or imitation weapon.
9. It was the case for A1 that the leader of the group was one Ho Tung-shing who he described as a very violent man and who had been his accomplice in crime since 1981. He had endeavoured to sever his relationships with Ho but had not been successful in doing so. However, in October 1991, he went into hiding with Ho and others at a holiday flat in Cheung Chau. There Ho made certain admissions to him regarding other robberies. He also told him that he was to go to premises at Ma On Shan to collect six guns and HK$4 million in cash. A1 then decided to contact the police and was interviewed by a Chief Inspector Yip Cheung at a hotel in Tsimshatsui. There he made full admissions as to his part in these crimes and said he was prepared to give evidence about the others who were involved. It was this voluntary surrender and assistance to the police that enabled them to make the crucial break-through in this case which resulted in the arrest of Ho and others.
10. It was the submission of Mr. Morris Tracy before Leong, J. that A1 had gone beyond mere cooperation and assistance. He was in every respect a "supergrass". He had given extremely valuable information and was prepared to give evidence in respect of a person who, with every justification, he regarded as extremely dangerous; all of which resulted in substantial risk to himself and members of his family. A1's actions had resulted in the police arresting the members of a highly professional and very dangerous criminal gang who had been eluding them for a long time.
11. Leong, J. took a starting point of 24 years for each count. Accepting what had been submitted on behalf of A1, he reduced that by 50% giving a sentence of 12 years' imprisonment on each charge, to be served concurrently.
12. Before us, Mr. Macrae said he could not quarrel with the starting point of 24 years taken by Leong, J. in light of the multiple offences, the very large amount of jewellery and money taken, the use of imitation firearms and the other factors involved. He did however argue that while the discount of 50% was substantial, A1 did fall squarely within the category of a "supergrass". He had volunteered crucial information and had offered to give evidence. There could be no doubt whatever that he would have given that evidence if he had been required to do so. In the event, however, the other defendants, including Ho, pleaded guilty. He was a man who had surrendered himself when in no immediate danger of arrest and, in view of his belief, which was not in any way challenged, that Ho was an extremely dangerous man, had, as Mr. Tracy had earlier told the judge, placed himself and his family at very considerable risk. There were other members of Ho's gang who had not been arrested and there could be little doubt that Ho, despite being imprisoned, would continue to have influence over them. As a result of A1's actions an extremely dangerous gang of robbers had been apprehended and brought to justice. The actions of people such as A1 were to be strongly encouraged. It was well-known that the arrest of persons responsible for robberies of this sort was extremely difficult and the result of trials by no means certain. Very substantial discount should be given to encourage persons such as A1 to come forward.
13. In R. v. Lau Yau-yuen  2 HKLR 278, this court had stated that a discount of 12 years from a starting point of 25 years was appropriate for a defendant who had pleaded guilty and given assistance to the police in other cases. There, however, the court had not been asked to treat the applicant as a "supergrass" and falling within the principles in R. v. Chan Fu-kui  HKLR 967. There Roberts, C.J., delivering the judgment of the court, said:
"We then noted that in English cases it had been suggested that it would be proper for the court to allow up to a two thirds deduction for what is called in England a 'supergrass', that is to say, a defendant who had expressed his willingness to assist the police at considerable personal risk in a number of cases. It is for the judge that in each instance on the facts before him to decide into which category a particular defendant falls."
14. The court was satisfied that there the applicant came within the "supergrass" category and should have been given a discount of two thirds of the original starting point of 28 years.
15. While, as was said in Chan Fu-kui, it is a matter for the discretion of the trial judge as to the category into which a defendant who has given valuable assistance to the police falls, we consider that here there was evidence, which was not disputed, that not only had this applicant surrendered himself when under no great pressure to do so, but had then given information to the police which enabled an extremely dangerous gang to be apprehended. We are also satisfied that this was done at considerable personal risk to the applicant himself and to his family and that therefore he does fall clearly within the "supergrass" category. We therefore consider that he was entitled to a reduction of two thirds of the sentence and we allow his application for leave to appeal against sentence, treat this as the hearing of the appeal and reduce the sentence from one of 12 years on each charge to one of 8 years on each charge, to be served concurrently.
16. Chan Kin-chung (A2) was sentenced to a total of 20 years' imprisonment in respect of 14 counts. There is no need to set out each one individually but, between 1st June 1989 and 20th July 1989, A2 took part in 12 robberies and 2 attempted robberies of various goldsmith shops in the New Territories, Kowloon and Hong Kong. In each case, he was together with Ho...