R. v. Lam Kwok-hung

CACC000210A/1991

---------------------------

Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Penlington, J.A.

Date of Hearing: 25 February 1992

Date of Judgment: 25 February 1992

--------------------------

J U D G M E N T

-------------------------

Hon. Yang, C.J.:

1. This is Lam Kwok-hung's application for leave to appeal against sentence.

2. He was convicted on his own plea of: Count 1 - Robbery, Count 2 - Possession of a firearm at the time of committing a robbery, and Count 3 - Resisting arrest whilst in possession of a firearm. He was sentenced to 12 years' imprisonment on Count 1 and eight years' imprisonment on Count 2, the two sentences to run concurrently. He was sentenced to eight years' imprisonment on Count 3, the sentence to commence nine years after commencement of the sentence on Count 1. The totality of his sentence is therefore 17 years' imprisonment.

3. In arriving at the sentences he did, the judge adopted a starting point of 15 years' imprisonment for the robbery and 10 years for possession of a firearm at the time of committing a robbery. The Crown offered no evidence on three other counts, namely, two counts of wounding and one count of shooting with intent, i.e. counts 4, 5 and 6 respectively.

4. The firearm in question was a 'Smith and Wesson' .38 special calibre revolver.

5. The facts are as follows.

6. On the 13th December 1989 at about 2.30 p.m., Lam and his co-acused, Yam Chik-sang, rushed into the Cheung Sha Wan Branch of the Standard Chartered Bank in Kowloon. Yam carried a pistol and shouted robbery and ordered everyone in the bank to lie on the floor. A lady bank employee activated the silent alarm and surveillance cameras as she squatted down.

7. Lam leapt over the bank's counter and took money from three tellers' drawers whilst Yam kept guard. Lam took $108,350 in cash and the two robbers fled. No one was injured.

8. The two robbers ran into Lai Chi Kok MTR Station and came out at the Tai Nam West Street Exit. There they boarded a taxi. When the taxi stopped at a set of traffic lights in Tai Nam West Street, a party of police, having earlier been alerted, ordered the taxi not to move on. Suddenly Yam fired two shots from inside the taxi. Police Constable Lai was injured by flying glass fragments and Police Constable Chan was shot in the chest. After the shooting Lam and Yam abandoned the taxi and ran towards Mong Kok. Whilst being chased, Yam turned and fired another shot which hit Police Constable Lai in the right thigh. The two robbers then made good their escape and disappeared. It was not suggested by the Crown that Lam was a participant in the shooting.

9. Fortunately, the two police constables did not suffer permanent injuries and have since fully recovered.

10. Acting on information, Lam was arrested on the 17th March 1990. Under caution, he admitted to the robbery.

11. Lam was born in February 1968 in Hong Kong. He has a criminal conviction for criminal damage in 1983. After his conviction but prior to sentence, he made a full statement to the police relating in detail the participation of others who were then still being sought by the police. He named the person who supplied him with the gun and who had conspired with him for other robberies to be committed in jewellery shops. As a result of the statement, two persons have since been arrested and are due to come before the court in July this year. He has indicated his willingness to give evidence.

12. Whilst the help he has given the police must be recognized in the judge's assessment of sentence, should he give evidence then that will be something for the Executive to consider.

13. The gist of this appeal is that the trial judge did not give full consideration to his co-operation with the police and the help he has given them.

14. The second point made on appeal was the disparity between the sentence given to the applicant and that given to the co-accused Yam.

15. Sentences of similar nature were imposed upon Yam for the six counts, i.e. Counts 1 to 6, with which Lam was also charged. But as we indicated Counts 4, 5 and 6 were not proceeded with in respect of Lam.

16. Yam faced an additional charge, i.e. Count 7, for possession of arms and ammunition without a licence for which a sentence of six years' imprisonment was imposed. The trial judge ordered the sentences on Counts 3 to 6 against Yam to run concurrently and to commence nine years after commencement of the sentence on Count 1, and the sentence on Count 7 to commence five years after the commencement of the sentence on Counts 3 to 6. The totality of the sentence imposed upon Yam was therefore 20 years' imprisonment.

17. Miss Toh, counsel for the applicant, does not quarrel with the starting points adopted by the trial judge for the individual sentences but she does urge upon us the sense of grievance felt by this applicant because of the difference in the criminality of this applicant and that of Yam.

18. In our view, the judge might have given a more generous discount in the light of the applicant's co-operation with the police in supplying information which led to the arrest of two other persons. We are also of the view that the sentence imposed does not reflect the difference in the criminality between the two accused. In our view, a totality of 15 years' imprisonment is appropriate. We therefore allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. We alter the order made by the sentencing judge: Count 3 - eight years to commence seven years - not nine - after commencement of the sentence on Count 1, thereby making a total of 15 years' imprisonment.

19. We would only add that it does not seem clear from the transcript of the proceedings below that anything was said as to the brave conduct of the Police Officers who were injured in the course of this robbery. This was only a partial transcript for the purposes of this appeal against sentence. We imagine they were then strongly commended for their actions and we would also bring to the attention of the Commissioner the conduct of those officers whose courageous action caused them to receive injuries not at the hands of the appellant, happily not serious, but which could well have been fatal.

Representation:

Mr. A.P. Duckett, QC & Mr. William Lam for Crown/respondent

Miss Esther Toh (DLA) for applicant