The Queen v. Lau Siu Po and Another

CACC000367/1989

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

Coram: Hon Cons, V.-P., Clough & Power, JJ.A.

Date of hearing: 29 December 1989

Date of delivery of judgment: 29 December 1989

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

J U D G M E N T

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

Clough, J.A.:

1. The two applicants (D1 and D2) and a third defendant were convicted by Wong J. in the High Court on the 30th June 1989 after pleading guilty to a joint count of robbery. On the same day D2 pleaded guilty to and was convicted on a count of burglary in the same indictment as the robbery count. D1 had pleaded not guilty to that count and the Crown did not proceed further against him.

2. On the robbery count D1 was sentenced to 6½years imprisonment. D2 was sentenced to 7 years imprisonment on that count and to a consecutive term of 2½years imprisonment on the burglary count. D1 and D2 now apply for leave to appeal against their respective sentences.

3. The robbery took place on the 27th January 1989 at the Po Hing Jewellery Factory which is situated on the 12th floor of a multi-storey building in Kowloon. The count to which D1 and D2 pleaded guilty alleges that they and their confederate robbed the proprietor of the factory (Mr Chan) and his employee (Miss Lai) of $520 and $300 respectively in cash. However the agreed summary of facts shows that the offenders were acting in pursuit of much more ambitious plans at the material time.

4. The factory is evidently a gold beating workshop comprising about 1800 square feet and it includes a workshop, office and manager's and safe room. There are two safes for tile storage of raw materials such as gold, silver and pearls and of finished goods. On the 27th January this year Mr chan and Miss Lai were about to leave the premises at about 10 p.m.

5. The circumstances of the robbery are graphically described in the following passages in the agreed summary of facts:

"... Mr. CHAN and Miss LAI left at about 10.00 p. m. She went out to press the lift button. After she had gone out and shut the main grille, he activated the burglar alarm. Having closed the grille behind him, he was about to switch on another burglar alarm outside the door when 3 men rushed out from the nearby staircase. All were carrying choppers about 1½ ft. long. One of them put a chopper to his face and told him to open the door. The robber crabbed his briefcase. Miss Lai was also threatened at knife point. He was told to open the door and did so. All 5 went inside. Inside the factory tile iron grille remained locked; the alarm attached thereto will sound if the grille is opened. One of tile robbers noticed this and told Mr CHAN to turn if off. He did so out at the same time managed to activate tile automatic alarm switch. It went off in the premises of Securicor who notified tile Police.

The victims meantime were pushed into the office. Two of the robbers took Mr Chan into the safe room to turn off the alarm switch in there, meanwhile the remaining robber took Miss LAI into the office.

One of the robbers ordered Mr CHAN at knife point to open tile safe out he delayed for a few minutes. A few minutes later a police siren could be heard in the street. Mr CHAN was again told to open tile safe. The robber grabbed a metal box. The robbers then took Miss LAI into tile manager's office and locked the door. Mr CHAN was told to go to the main door and tell the police that nothing was going on, otherwise Miss LAI would be chopped to death. In the meantime her head had been covered with a cloth and she could not see what was going on.

Mr CHAN told the police party what had happened. One of the officers shouted at the robbers to come out. As they did not, two officers attempted to break down the door. Finally at 10.15 p.m., the robbers opened the door and surrendered.

Three beef knives and adhesive tape which was to have been used to tie up tile victims were seized.".

6. The burglary count to which D2 pleaded guilty related to a residential flat in Hong Kong which had been left locked at 3 p.m. on the 1st January this year. At 11 p.m. two of the occupants returned to find that tile main door had peen prized open and the flat ransacked. Valuables worth about $43,300 had been taken. These included a Rolex watch which D2 subsequently pawned.

7. Both the applicants made cautioned statements admitting the respective offences to which they subsequently pleaded guilty.

D's application:

8. D1 was born on the 6th July 1968. When he committed tile robbery he was about 20½ years old and he was nearly 21 when sentenced. He had two previous convictions, both in 1984, when he was 16, for disorderly conduct in a public place and theft respectively. For the latter offence he had been made the subject of a detention centre order.

9. In mitigation below D1's counsel relied on his plea of guilty, his early co-operation with the police and his youthful age. He also contended, as D2 admitted through his counsel, that he had taken part in the robbery at the instigation of D1. Further matters relied upon were that the victims of the robbery were not gagged or tied up, no actual violence or injury had been inflicted on them and the stolen property had peen recovered.

10. The judge rightly mace it clear that he regarded this as a bad case of robbery which required a deterrent sentence. He considered the proper sentence for the offence to be 9 years imprisonment. He said that the only mitigating factor was the pleas of guilty for which he was prepared to allow considerable discount although the offenders had been caught red-handed. In the case of D1 he also had regard, when passing a lesser sentence of 6½ years, to the fact that he was the youngest of the three offenders and that there was sore indication that the robbery had been instigated by the other offenders.

11. By his perfected grounds in support of his application D1 contends that this sentence is excessive and that the judge failed to give sufficient discount for his plea of guilty, his young age and his part in the robbery.

12. Mr Percy for D1 has submitted before this court that the judge tailed to apply the guidelines laid down in Mo Kwong Sang [1981] HKLR 610 (C.A.) when sentencing D1. The starting point of 9 years, he says, is too high, although there was invasion of private business premises at night there was no ill treatment of the victims. The acid test, Mr Percy contends, is whether there are sufficient aggravating factors to justify raising the starting point beyond 7 years, which he accepts as appropriate where private business premises have been invaded for robbery.

13. Mr Percy relies on the young age of D1 and the fact that he was not the instigator of the robbery and contends that tile judge made insufficient allowance for these factors and for D1's plea of guilty.

14. In our view tile judge was right to regard this robbery as a pad case which required a substantial deterrent sentence, notwithstanding the fact that none of the victims were injured and that, through the courage and presence of mind of Mr Chan, tile whole criminal enterprise proved abortive.

15. This was not a typical lift robbery of the kind considered in tile cases listed by Mr Lee for D2 where a sentence of 5 years imprisonment after trial has peen held tone appropriate. It was a planned invasion at night, by a combination of three men, of private business premises where valuable property was stored. The offenders were armed with choppers which were used to threaten the victims and to get Mr Chan to open a safe. The unfortunate Miss Lai was forced into the manager's office which was locked by the culprits who covered her head with a cloth and told Mr Chan to tell the police nothing vies wrong or Miss Lai would be chopped to death.

16. It was only when the police attempted to break down the door that tile culprits surrendered.

17. In tile face of all the above mentioned positive aggravating factors we consider that a starting point of 9 years was fully justified in the light of what was said in Mo Kwong-sang. The fact that other possible aggravating factors were or may have been absent does not wean such aggravating factors as existed did not make the robbery a very serious one. In our judgment the judge was right to start with 9 years and then to make a discount in respect of tile pleas of guilty.

18. The discount of 2 years which the judge made in the case of D2 and the third offender in respect of their pleas of guilty must also have been made in the case of D1. The further discount of 6 months in his case must therefore be attributable to his age and to the fact that D2 was the instigator of his participation in the robbery.

19. We consider the 2 years discount for D1's plea of guilty to have been justified but on the generous side bearing in mind that the defendants were trapped red-handed. The relatively modest discount for D1's age and part in the robbery were in our opinion fair, reasonable and sufficient.

20. As far as age is concerned, D2 was only 22 when the offence was committed. He (and his confederates) received no common discount for age but tile judge felt that he could properly make some allowance for D1 as the youngest of the youthful offenders. Such an adjustment is allowed for in Mo Kwong-sang's case at P.611H, but in the case of serious robbery (where section 109A of the Criminal Procedure Ordinance (Cap.221) does not apply) this court does not regard youth in itself as an exceptional circumstance. In the present case we can find no fault in tile modest adjustment made in D1's sentence.

21. As regards D1's part in the robbery, there is no evidence that he aid not play a full part once he had agreed to join the enterprise. He has admitted the summary of facts which indicates that all three men were armed with choppers about 1½ feet long, and does not indicate anything but concerted action by all three. The judge was in our view right to make only a modest adjustment in D1's sentence on account of the fact that D2 admitted that he was the instigator.

22. We can therefore see no merit in D1's application which is dismissed.

D2's application:

23. D2 was born on the 27th November 1966. He was 22 years old when he committed the robbery and burglary and about 22½ years old when sentenced. He had two previous convictions. In 1985 he received short suspended prison sentences for going equipped and resisting arrest and in 1989 he was fined for criminal damage.

24. D2's counsel relied in mitigation below on D2's plea of guilty. As regards the robbery offence his counsel sought to rely on the fact that when caught by the police the offenders had surrendered and had not attempted to escape or endanger their victims. Counsel went so far as to submit that whilst the victims had been threatened there was in fact no intention to hurt them, nor did they suffer any injury.

25. The reason given by D2's counsel for both his offences was dent and unemployment. The inevitability of consecutive sentences was accepted but the proximity of time between the two offences and the totality principle were relied upon in support of a submission for a short consecutive sentence on the burglary count.

26. The judge accepted none of the factors relied upon as mitigating factors except D2's plea of guilty which he regarded as justifying a discount in the sentence for robbery from 9 years to 7 years. He gave no indication of the extent of discount made in the case of the burglary count in respect of which he imposed a sentence of 2½ years, resulting in an effective overall sentence of 9½ years.

27. In his perfected grounds in support of his application D2 contends that the sentences imposed on him are manifestly excessive. As regards the sentence for the robbery the contention in the grounds is, in effect, that the judge gave no or insufficient weight to the above mentioned factors relied upon in mitigation at the time of sentence other than D2's plea of guilty.

28. In the case of the burglary count the perfected grounds contend that the judge gave no or insufficient weight to D2's full co-operation with the police in admitting the offence.

29. Before this court Mr Lee has in effect re-iterated all these grounds. He also relied on Mo Kwong-sang and contended that a starting point of 7 or 8 years would be more appropriate for the robbery count. As to the burglary charge Mr Lee relied on the fact that the judge did not actually indicate that he was making a discount on account of D2's plea of guilty and early admission in respect of the burglary offence for which Mr Lee contended 2 years would have been an appropriate starting point.

30. We have already given our reasons, when dealing with D1's application, for holding that the judge was justified in starting with 9 years for the robbery count and allowing 2 years for the pleas of guilty.

31. We think it unfortunate that the judge did not specify the discount which he intended to mace for D2's plea of guilty and early admission in respect of the sentence imposed on D2 for the burglary count. However we are satisfied that a sentence of 3 years imprisonment would have been a proper starting point and that the sentence of 2½ years imprisonment imposed by the judge sufficiently reflected and must have been intended by him to reflect the plea of guilty and early admission of guilt by D2.

32. We consider that the total effective sentence of 9½ years, although heavy, was appropriate in all the circumstances. Accordingly D2's application is also dismissed.

Representation:

Duncan Percy (Walter woo & Co) for 1st Applicant/D1

Lambert K.C. Lee (Tang, Wong & Cheung) for 2nd Applicant/D2

C. Coghlan, Crown Prosecutor for Respondent/Crown