Hong Kong Judgment

Court of Appeal

HKSAR v. CHEUNG KAI CHUNG

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The appellate court held that the starting points adopted by the sentencing judge were justified by the gravity of the offences and the applicant's significant active role; the two‑thirds discount for cooperation was appropriate and, due to the clear nexus between Count 13 and the other offences, the full discount should apply to that count resulting in reduction of Count 13 to six months and a revised total sentence of nine years six months.

Court disposition

Appeal allowed in part; sentence on Count 13 reduced to 6 months; total sentence reduced to 9 years 6 months.

Orders

  • Leave to appeal granted
  • Hearing treated as the appeal
  • Sentence on Count 13 (possession of a false instrument) reduced to 6 months to be served consecutively to other sentences
  • Total sentence adjusted to 9 years 6 months

02

Material facts

Parties

Applicant

Applicant Counsel: Applicant in person

Respondent

Respondent Counsel: Mr Robert S K Lee, SADPP, Department of Justice

Amounts and remedies

  • Notional Overall Starting Point (years): years 30
  • Final Sentence Imposed by Sentencing Judge (years): years 10
  • Revised Total Sentence on Appeal (years): years 9.5
  • Notional Starting Point for Count 13 (years): years 1.5
  • Final Sentence for Count 13 on Appeal (years): years 0.5

03

Procedural history

  1. Posture

    Criminal Appeal Against Sentence / Application for Leave to Appeal; Leave Granted and Hearing Treated as Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant submitted the starting point for the arms possession count was too high and sought greater mitigation based on prolonged pre‑sentence stress, isolation in custody, concern for family welfare in Mainland China and the financial/medical needs of his son.
Respondent
The respondent submitted the offences were grave, well planned and executed, the applicant played an active and important role as a trusted lieutenant, the starting points adopted by Beeson J were appropriate, the two‑thirds discount reflected his cooperation and nothing material had changed to justify further reduction.

05

Court’s reasoning

  1. 01

    Beeson J sentencing judgment and established sentencing practice

    Sentences must reflect the gravity of offences and the offender's role; starting points are set accordingly

  2. 02

    Established sentencing principles applied by appellate court

    A substantial discount may be appropriate for substantial assistance/cooperation but must be proportionate to the assistance given

  3. 03

    Principles of appellate review of sentencing, as applied by the Court

    Appellate courts will interfere with sentencing only if there is demonstrable error or manifest excess

06

Ratio, limits and disposition

Ratio decidendi

The appellate court held that the starting points adopted by the sentencing judge were justified by the gravity of the offences and the applicant's significant active role; the two‑thirds discount for cooperation was appropriate and, due to the clear nexus between Count 13 and the other offences, the full discount should apply to that count resulting in reduction of Count 13 to six months and a revised total sentence of nine years six months.

Obiter and limits

  • The applicant was described as a 'supergrass' and as a 'trusted lieutenant' rather than a mastermind
  • The distinction between the roles of the applicant and the Wongs was largely theoretical given the applicant's vital role in execution of plans
  • The prosecution of organised group robberies with recruited mainland participants underlines the seriousness and sophistication of the offending

Court disposition

Appeal allowed in part; sentence on Count 13 reduced to 6 months; total sentence reduced to 9 years 6 months.

  • Leave to appeal granted
  • Hearing treated as the appeal
  • Sentence on Count 13 (possession of a false instrument) reduced to 6 months to be served consecutively to other sentences
  • Total sentence adjusted to 9 years 6 months

Source and reliance status

Court of Appeal · 5 June 2007

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Judgment reading view

Judgment text

The complete available source text.

Source document

Court of Appeal

Judgment· 5 June 2007

HKSAR v. CHEUNG KAI CHUNG

bjbj 5U nt ____ Before: Hon Stuart-Moore VP and Wright J in Court Date of Hearing: 5 June 2007 Date of Judgment: 5 June 2007 _____

JUDGMENT ___ Hon Wright J (giving the judgment of the Court): The applicant applies for leave to appeal sentences imposed upon him by Beeson J. on 24 January 2007. After his arrest the applicant was charged with 13 counts. Upon committal on 22 August 2003 he pleaded guilty to all. He was committed, in custody, to the High Court for sentence. Sentencing was delayed as a result of his offering to give evidence against various co-accused. There were two separate indictments preferred against various persons. Two accused, both with the family name Wong, were common to each indictment. The applicant gave evidence in a trial in the High Court under HCCC58/2004 in which four persons were convicted. He was willing to give evidence, further, in HCCC77/2004 but this was rendered unnecessary by the pleas of the two Wongs in that matter: they had earlier been convicted and sentenced in HCCC58/2004. When sentencing the applicant, Beeson J. set out in detail the matters which she took into account on his behalf in mitigation. In doing so she made a finding that he fell into the category of a supergrass . On five counts of robbery she took a starting point of 15 years imprisonment, on three counts of robbery one of nine years imprisonment, on one count each of attempted robbery and conspiracy to rob one of 15 years imprisonment, on a count of possession of arms and ammunition

without a licence a 12-year starting point and on a count of possession of ammunition without a licence a 6-year starting point. On a count of possession of a false instrument she imposed a sentence of 12 months. The starting points on counts 1 to 12 were then discounted by two thirds to reflect the applicant s status arising from his co-operation with the police, his personal circumstances, the delay in sentencing and the potential ongoing threat, even after his release, to him and his family. Orders were then made that some be served concurrently, some consecutively, including the sentence of 12 months on Count 13. The result is that the applicant is to serve a term of 10 years. The applicant makes four points in his application: first, that the starting point in respect of the count of possession of arms and ammunition without a licence is too high; second, that in the three years and seven months prior to his being sentenced he has been subject to a lot of stress both in terms of awaiting sentence and of being kept separate from other prisoners for most of the time; third, that he is under stress due to his concern for the welfare of his family in the Mainland; and, fourth, his son suffers from aplastic anaemia which requires expensive medical treatment which his wife is unable to finance. The offences of which the applicant was convicted were grave. Beeson J., when passing

sentence, said: 30. In respect of these offences, they are very serious, they were also well planned and executed. The major protagonists were the Wong brothers. They were assisted by Au who sheltered the Mainland recruits at his home when necessary and who gave access to his home for storage of weapons. The sophistication of planning is exemplified by the fact that this was a group activity organised by Hong Kong residents with Mainlanders assistance, as required, for each robbery. It appeared from the evidence at trial that fresh recruits were obtained for each robbery and they were returned to China as soon as possible after the robbery was committed. They were paid generously for their help.

31. It has been put before me that in this particular series of offences, the accused was a foot soldier . However although I accept that he was not a mastermind, he was party to the plans and acted as a trusted lieutenant for the main protagonists of the robbery. He took part in reconnaissance and visited the target areas, as well as taking the assistants, when they arrived, to view the targets. He distributed weapons when told to do so and recovered them after the robberies. He was paid substantial sums for his work, but I accept that he did not share in the major profits of the enterprise. He had obtained the forged ID card at the behest of one of the Wong brothers to facilitate his travelling in and out of Hong Kong. To underline the gravity of these offences it is only necessary to add that in every one of the robberies and the attempted robbery the perpetrators carried weapons, on occasions a firearm, and had no hesitation whatsoever in using them at an early stage of the offences. As to the discrete complaint concerning the starting point adopted in respect of the count relating to possession of arms and ammunition, we are satisfied that, on the facts, 12 years was appropriate as was the starting point adopted in respect of each of the other counts. Nothing has been put before us today which was not already before the sentencing judge and taken into account by her. There

has been no change in circumstances in respect of any of those factors made known to us. With a final sentence of 10 years imprisonment after a discount of two thirds on counts 1 to 12, the notional overall starting point is one of 30 years imprisonment. Although the judge described the Wongs as the masterminds the applicant s role was vital to the execution of their plans: the distinction between their respective roles is theoretical rather than real. Having regard to the gravity and number of the offences in which the applicant was involved, the active and important role which he played throughout and to the sentences imposed on the two Wongs, we are satisfied that such a notional starting point is fully justified. We have also considered whether the applicant should have received the same percentage discount in respect of Count 13, possession of a false instrument, as he did on the other counts. On the facts, he possessed that document to facilitate his movements between Hong Kong and China. Those movements related, at least in part, to recruitment of persons to conduct the robberies. There is a clear nexus between the offences such as, in our view, to entitle the applicant to the full discount on this final count as a matter of principle. The notional starting point was 18 months: the final sentence should have been 6 months. We give leave and treat the hearing as the appeal. The appeal is allowed to the extent that the sentence on Count 13 is reduced to 6 months which is to be served consecutively to the other sentences. The total sentence is 9 years 6 months. (M. Stuart-Moore) (A R Wright) Vice-President Judge of the Court of First Instance Mr Robert S K Lee, SADPP, Department of Justice, for Respondent Applicant in person

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

HCCC58/2004

Case cited

HCCC77/2004

Case cited

Sentencing decision of Beeson J dated 24 January 2007

Case cited

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