HKSAR v. Cheung Wai Tun

CACC000331/1999

CACC 331/1999

HEADNOTE

Criminal law - conspiracy to rob - sentence - firearm used in eventual robbery - plea accepted on basis that the defendant had no knowledge a firearm would be used in the robbery - R v Mo Kwong-sang considered.

CACC 331/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 331 OF 1999

(ON APPEAL FROM HCCC 389 OF 1998)

_____________________

Coram: Hon. Stuart-Moore VP and Wong JA

Date of Hearing: 23 December 1999

Date of Judgment: 23 December 1999

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

1. On 26 May 1999, the Applicant pleaded guilty in the Court of First Instance before Deputy Judge Gill midway through his trial for conspiracy to rob, at a point when the prosecution had almost completed its case. He was sentenced on 9 June 1999 to eight years' imprisonment. The Applicant now seeks leave to appeal against sentence.

2. The facts were straightforward. The Applicant worked as a member of the staff at Swan Lake Nightclub in Mongkok. During the course of his employment, he met someone with whom he was acquainted who suggested a scheme to take the wages for the nightclub on their way from the bank to the nightclub. The scheme amounted to robbery. The Applicant agreed to provide details of how, where and when the cash would be carried. It was not intended that the Applicant himself would play any physical role in the robbery. In return for providing for the information, the Applicant understood that he would be given 10% of the proceeds.

3. In the event, a robbery did take place. This involved the Applicant's friend, Ah Wah, and two others. The robbery occurred at 2.55 p.m. on 19 March 1997 at the main door of the nightclub where the two men who were responsible for the wages were accosted. One of them was shot in the chest and received serious injury from which he has fortunately made a full recovery. Over $312,000 was taken, none of which has been recovered.

4. The judge, in passing sentence, dealt with the circumstances of the Applicant's arrest and his confession to the police in the following terms:

"The defendant was at the time also a staff member of Swan Lake. Periodically he was put in charge of cashing the payroll cheque. He was still so employed 16 months later, when a tip-off to the police led to his arrest under suspicion of complicity in the robbery. He was interviewed twice under caution recorded on video. During the course of these, he confessed that about a month prior to the robbery he had met up with an acquaintance who laid the groundwork of a scheme whereby the payroll cash be stolen on its way from the bank to Swan Lake. The defendant's role was to provide details of how, when and where and by whom the cheques were cashed and the cash carried, and he agreed to do so in return for 10 per cent of what they could steal.

On the day of the robbery the accomplice telephoned and asked him to describe what the carriers were wearing that day. But otherwise he was told to play no part and carry on his duties at work as usual. That he did. He heard the shot that was fired that wounded his colleague. It was he who called the police. He gave a witness statement, but otherwise was not called upon to assist in the investigation until his arrest some months later."

5. The questioning of the Applicant thus revealed that he had become involved in a serious robbery of its kind. In a helpful and detailed summary of the interviews provided on behalf of the Respondent by Mr Blanchflower in his written argument, he pointed to the various ways in which the Applicant assisted in this robbery. These details provide a broader picture of the gravity of the offence.

6. The Applicant had in fact first met his co-conspirator, Ah Wah, when the Applicant was 17 years old. By the time of this robbery, the Applicant was 22 and Ah Wah apparently 31 or 32 years old. The Applicant had not seen Ah Wah for some time. In fact, he knew that Ah Wah had been serving a sentence of imprisonment for a number of years.

7. The Applicant began work at Swan Lake Nightclub in September 1995. He was very familiar with the way in which wages would be collected. The amounts that would usually be involved were often $200,000 or more. He knew that two employees from the nightclub would pick the cash up from the bank, with one of them carrying the money and the other acting as an escort.

8. During February 1997, Ah Wah called the Applicant and the two of them met. During their meeting, Ah Wah asked the Applicant to lend him some money. At the end of February or the beginning of March 1997, there was a further meeting. Ah Wah informed the Applicant that he was in some trouble and needed money desperately. It was then that Ah Wah enquired about pay day at the nightclub. The Applicant informed him that it was on Wednesday and that someone would go to the bank to draw out money. The Applicant explained where the bank was and described the wages-collection system to Ah Wah. It was then that Ah Wah told the Applicant that he intended to commit a robbery on pay day. He asked for the details about the payment of wages which the Applicant agreed to provide. There was a further meeting in the middle of March 1997. This time Ah Wah was accompanied by two others. They were of a similar age to Ah Wah. They talked for some time and once again the details of how the robbery could be committed were discussed. Ah Wah told the Applicant that he was to treat the day on which the robbery occurred as a normal day, and that he would be provided with 10% of the proceeds. The agreement was that if the Applicant himself had to collect the wages, as sometimes happened, on the day intended for the robbery, then the robbery would not take place.

9. In his interviews the Applicant emphasised that he had no idea a pistol would be used in the robbery, and that he did not know Ah Wah possessed such a weapon.

10. The Applicant told police that, following the robbery, he had been in touch with Ah Wah who admitted to him that he had been responsible for carrying it out. There were further meetings between the two men. The Applicant enquired who the accomplices had been in the robbery, but he was told that he should not care about such things. The Applicant was promised that he would eventually be paid his share but, in the event, he received no payment despite efforts on his part to obtain his share from Ah Wah on a number of occasions.

11. It is with that background, which the judge would have had in mind, that the judge went on to take a starting point of ten years' imprisonment for the role played by the Applicant who, it was conceded at trial, had no knowledge that a firearm would be used to commit the robbery.

12. Mr McNamara, on the Applicant's behalf, raises what amounts to a single ground of appeal and, with commendable brevity, he has submitted that, given the fact that the Applicant neither knew of the existence of a firearm nor anticipated that one would be used in the commission of the robbery, the starting point adopted by the judge was too high. He submitted that this has led to a sentence which is manifestly excessive.

13. In developing this argument, Mr McNamara suggested that the proper approach which the judge should have taken was to have used the guidelines in R v Mo Kwong-sang, (1981) HKLR 610, for robberies where the offenders have carried dangerous weapons other than a firearm and in circumstances where physical violence has been used. In other words, Mr McNamara was not suggesting that the top end of the scale in the Mo Kwong-sang guidelines should not be accepted, but that about seven years was effectively the appropriate starting point for this case.

14. It is apparent from the starting point actually adopted by the trial judge, that the Applicant was not being sentenced for an offence where he was having to shoulder the blame for the shooting or even for a robbery in which a firearm was contemplated. If this had been so, the starting point would have been markedly higher. The judge made that plain in sentencing when he said:

"A matter stridently put in mitigation by defence counsel is that it would be a mistake to sentence the defendant upon the basis that he took part in a robbery during the course of which a firearm was discharged. Counsel points out that there is no evidence that the means by which the robbery would be carried out was ever discussed by the conspirators; particularly, there was no indication that a firearm was to be displayed, much less used. The prosecution does not seek to put a contrary view, and I accept that to be the case.

On the other hand, what is before me is the defendant's admission that he was part of a plan to rob a wages clerk, in the full light of day, in a crowded, urban environment, of a large amount of cash. It must have been in the contemplation of the defendant that such an operation could only succeed, and the robbers make their getaway, if it were speedily executed with the guarantee of minimal resistance. It beggars belief that he anticipated no more than minimal violence in the circumstances. And, as a co-offender with those whose role was more front-line, he must share responsibility for the foreseeable consequences. I shall not sentence the defendant on the basis that he knew or anticipated the use of a firearm. But I shall on the basis that he was a prominent, though not principal, participant in a serious crime, where extreme violence must have been reasonably foreseen by him."

15. We have given anxious consideration to the judge's remarks, and we have concluded that his assessment was both proper and sensible. On any view, this conspiracy must have involved a high degree of violence as a foreseeable consequence. In these circumstances, we are unable to accede to the argument that the judge adopted a starting point which was too high. Indeed, in Mo Kwong-sang no specific constraint is placed upon a judge in sentencing to a term of imprisonment of this length in such circumstances as these. This was a daring and well-organised plan, involving also a gross breach of trust on the part of the Applicant, who effectively did not want to know how the robbery would be carried out. The judge's assessment of the case was, in our judgment, without fault.

16. The application is accordingly dismissed.

Representation:

Mr M.C. Blanchflower, DPGC of the Department of Justice, for the Respondent.

Mr John McNamara, instructed by the Legal Aid Department, for the Applicant.