HKSAR v. Chow Yuk Hing

CACC000356/1997

IN THE COURT OF APPEAL

1997, No. 356
(Criminal)

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Coram: Hon. Power, V-P, Mayo, J.A. and Wong, J. in Court

Date of hearing: 27 November 1997

Date of delivery of judgment: 27 November 1997

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty to one count of robbery and one count of using a firearm to resist arrest. He was sentenced to 10 years' imprisonment on the 1st count and 11 years' imprisonment on the 2nd count. Stock, J, the sentencing judge ordered that three years of the sentence on the 2nd count should be served concurrently with the sentence on the 1st count, thus making a total of 18 years' imprisonment to be served.

2. This was an extremely serious case. So far as the facts are concerned we can do no better than to refer to the first four paragraphs of the agreed summary of facts.

" The Dickson Watch and Jewellery Company Limited situated at Shop No. E5A and E5B, Ground Floor, Peninsula Hotel Shopping Arcade, Peninsula Hotel, Tsim Sha Tsui, Kowloon. At about 1.55 p.m. on 22.6.95, the accused and male CHENG Chi-shing posed as customers to enter the shop, each of them carrying a hand carrier bag. There were 3 staff and 2 customers in the shop at that time. CHENG was attended by the deputy manager Mr CHOI Chee-sum as he requested to see some Rolex watches and the accused stood behind him. Suddenly CHENG declared robbery and warned Mr CHOI not to press the alarm. The accused took out a black pistol from his black carrier bag to point at the staff of the shop. After CHENG had grabbed some Rolex watches from the showcase, the accused pointed the pistol at a salesman Mr LEUNG Ka-ming and told him to open the door. They then fled towards the Salisbury Road exit of the Shopping Arcade. Mr CHOI and Mr LEUNG gave chase but they lost sight of the robbers after they had turned from Salisbury Road into Nathan Road.

2. A total of seven Rolex watches to the value of HK$1.1 million were stolen. One of the watches was later recovered from the floor inside the shop and another watch was recovered from the Salisbury Road exit of the Shopping Arcade. No person was injured during the course of the robbery.

3. At about 2.02 p.m. on the same day, PC 50312 was on plain cloth duty and travelling in a police vehicle when he saw a male running along Nathan Road at outside the Shui Hing Department Store. He immediately alighted the vehicle to give chase. Later at the concourse of Tsim Sha Tsui MTR station, he saw the accused walking hurriedly towards the turnstiles, looking around several times. After they had passed through the turnstiles, PC 50312 intercepted the accused at turnstile No. 27 and declared his police identity. He pushed the accused to the wall with a view to conduct body search. The accused suddenly put down his hands forcefully, causing a black wallet and some cards to drop from his person. He then produced a black pistol in his right hand and pointed at PC 50312, ordering him to lie on the ground. After PC 50312 had rested on his knees, the accused pointed the pistol at his head, ordered him to put up his hands and prostrate on the ground. The officer complied. The accused continued to point the pistol at the officer while he moved back to pick up the wallet and cards. He then turned round, jumped over the turnstiles and fled in the direction of the Hoiphong Road exit. PC 50312 gave chase and heard the sound of a shot being fired about 3 - 4 seconds later.

4. At the material time, Miss LEUNG Ching-sze and her classmate Miss CHAN Kwan-yi were ascending the escalator at the Hoiphong Road exit of the Tsim Sha Tsui MTR Station. Suddenly they heard a loud 'BANG' sound coming from their back and Miss LEUNG immediately squatted down. Her left arm was bleeding profusely and she also felt immense pain over her right belly. A commotion ensued and other passers-by dispersed in all directions. Miss LEUNG was then taken to Queen Elizabeth Hospital for medical treatment."

3. Originally the Applicant was also charged with discharging a firearm with reckless disregard for the safety of others contrary to section 22(1) of the Firearms & Ammunition Ordinance. The Applicant pleaded not guilty to this offence and the prosecution were prepared not to pursue the charge for the time being. It emerged during the hearing before Stock, J that the reason for this was that the prosecution did not consider it had sufficient evidence to prove that the firearm had been deliberately discharged.

4. Mr. Whitehouse represented the Applicant here and below. In mitigation below he submitted that his client had only reluctantly agreed with his accomplice Mr. Cheng to undertake the robbery. For the reasons he gave, Stock, J was understandably loathe to attach much weight to this. Mr. Whitehouse also informed the court that he had instructions from his client that when he had been intercepted by the man in the MTR he had not realised that he had been a police officer. Stock, J declined to accept that. As a result a "Newton enquiry" was conducted and evidence was given by both the police officer concerned and by the Applicant. Having heard their evidence the Judge adhered to his initial scepticism.

5. In passing sentence the Judge considered that it was necessary for him to consider first the robbery and then to go on to consider the resisting arrest charge as this clearly was an additional matter to the robbery.

6. In considering the resisting arrest charge, he went on to take cognisance of what he accepted to be the accidental discharge of the firearm and the consequence of Miss Leung sustaining the injuries she did which fortunately appear not to have been of a permanent nature.

7. One of the main grounds of appeal before us relates to this. Mr. Whitehouse argues that the discharging of the firearm was a separate and distinct matter. The Judge was fully entitled to take into account the inherent risks arising out of using a loaded firearm to resist arrest. Particularly in the circumstances of this case where inevitably there was a likelihood of people getting injured. Indeed the consequences could have been far worse.

8. It was partly as a result of this that the Judge considered 25 years to be an appropriate starting point which would adequately reflect the seriousness of these offences.

9. Shortly after the commission of these offences the Applicant went to China. It was on his return from China a year later in July 1996 that the Applicant was arrested. He did not surrender himself to the police.

10. The other main ground of appeal was that the Judge adopted too high a starting point of 16 years on the 2nd count. This ground is closely interrelated with the other ground which has been referred to.

11. There can be no doubt from reading the Judge's Reasons for Sentence that he regarded this as a most serious case of this type.

12. It is difficult not to agree with him.

13. On the agreed facts the Applicant was wielding a loaded revolver in Tsim Sha Tsui while attempting to make good his escape from a robbery. He was prepared to point the gun at the police officer's head and put his life at hazard. There was also the grave risk of injury or death to other people going about their lawful business.

14. There was not much which could be said in mitigation of this offence other than the Applicant's pleas of guilty. He had been convicted in 1981 of 2 robberies, one of which was a bank robbery and could not be regarded as a person of good character.

15. Although the sentences were severe sentences, we do not consider that we would be justified in interfering with them having regard to the very serious nature of these offences.

16. The application is accordingly dismissed.

Representation:

Mr. A.A. Bruce, S.C. & Mr. Martin Hui, G.C. (D.P.P.) for Respondent

Mr. F.C. Whitehouse (D.L.A.) for Applicant