Secretary for Justice v. Wong Kwong Fei and Another

CAAR000010/1997

1997, AR No.10

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram: Hon. Power, V.-P., Rogers & Stuart Moore, JJ.A.

Date of Hearing: 17 December 1997

Date of Judgment: 17 December 1997

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The 1st respondent in this matter faced three counts - one of robbery, one of possession of arms and ammunition without a licence and one of the use of arms with intent to resist arrest. The 2nd respondent faced the robbery count jointly with the 1st respondent. Both of them pleaded guilty to the robbery count. The 1st respondent pleaded guilty to the possession of arms and firearms count and the 3rd count was not proceeded with. The 1st respondent was sentenced to 11 years on the robbery count and 5 years on the arms count and the sentences were ordered to be concurrent. The 2nd respondent was sentenced to 4 1/2 years on the robbery count.

2. The counts read as follows: that they on 7th November 1996 at Wing Kwong Watch and Goldsmith Company located at Shop No.A2, Ground Floor, 230 Temple Street, Yaumatei, together with others not in custody, robbed Lin Kim-shing, Chow Yuen-chu and Siu Wing-chun of 35 wrist watches. The possession of arms count reads that the 1st respondent, on the same day and at the same place, had in his possession an arm and a quantity of ammunition, namely one 7.62 mm calibre self-loading pistol of Chinese origin and six live rounds of 7.62 mm calibre ammunition, without a licence.

3. The admitted facts were that the Wing Kwong Watch and Goldsmith Co. carries on business at the address mentioned, and that the shop consists of a ground and mezzanine floors of the building it occupies. The ground floor has open counters where watches and jewellery are on display and there was a workshop on the mezzanine floor. At around 9:20 p.m. on 7th November 1996, proprietor Mr. Tong Man-kin was sitting in the mezzanine floor. There were a number of other staff members on the premises. They were on the ground floor and were getting ready to close the shop for the evening. When the gate to close the shop was about two-thirds down, the 1st respondent and another male, Cham Wai-hung (the second robber), bent down and hurried into the shop. There was a commotion and the proprietor, seeing it from the mezzanine floor, reported the matter to the police. The two offenders produced pistols. They pointed them at the head of one of the staff and said "Robbery, don't make a noise, if you make noise I will blow your heads." Staff members were then herded into the middle of the shop and forced to squat down. They were tied up using nylon strings. One of the robbers then demanded the keys of the showcase saying that he would shoot if the keys were not given. One of the staff, understandably fearing for her safety, told the robbers where the keys could be found. They then opened the showcases and took 35 wristwatches valued at more than $1m. One of the robbers then had a conversation on his mobile phone and he was heard to say "It will be alright soon."

4. The robbers then proceeded towards the entrance of the shop intending to flee. They attempted to open the gate by pressing the button but, as the gate was ascending, banging was heard from outside. They then grabbed one of the staff members, pointed a pistol at his temple and dragged him out of the shop as a hostage. His hands were still tied at that time. While so attempting to make their escape, the robbers were challenged by the police who warned them to drop their weapons and surrender. Both robbers pointed their pistols at the police and fled. The police warning was ignored and there was then an exchange of gun fire. The second robber fired back at the police when they opened fire. Four police officers fired a total of 5 shots and both robbers were wounded. The second robber eventually succumbed to his wounds. The 1st accused respondent was ordered to drop his gun. He ignored this and, whilst still holding the pistol, said, "Let's die together." He was, however, disarmed by the police and dragged to the ground.

5. So much for the circumstances of the offences. These were, as they demonstrate, gravely serious offences. The Secretary for Justice applies to review the sentences imposed.

6. Deputy Judge Wilson, when sentencing, said:

"The 1st accused (1st respondent) is 25 years of age and is a Chinese national with a clear record. Defence counsel submits he was taken to the scene by others and he was not aware it was to be an armed robbery until he was handed the pistol. She also submits that he did not fire his gun at the scene. Although sceptical, I have to accept this because the ballistic evidence falls short of establishing otherwise. As I have said, however, his gun was loaded.

The staff of the shop were not injured, although a passer-by was. The 1st accused himself was quite seriously wounded, although it appears he has recovered. It is pointed out that he has confessed and has pleaded guilty, although it would seem he would have little option.

The 2nd accused (2nd respondent) is also a Chinese national, aged 32 years, and has one previous conviction for remaining in Hong Kong unlawfully. It is submitted that he confessed voluntarily when stopped the next day for a routine check, and that the police then had no information of his involvement. The prosecution accept this. He admits acting as look-out with a mobile phone, as described, and claims to be unaware that firearms would be used inside the shop. Again, I am sceptical but I accept this; there is nothing to establish otherwise.

In all the circumstances, I select an overall starting point for the 1st accused of 16 years and deduct five years for the pleas of guilty. The 1st accused is sentenced to 11 years' imprisonment on Count 1 and five years' imprisonment concurrent on Count 2.

For the 2nd accused I select a starting point of seven years and deduct two and a half for his plea of guilty. In the result, I impose four and a half years' imprisonment on the 2nd accused for Count 1."

7. Mr. Cross, who appears today for the Secretary for Justice, argues a number of points. His first and principal point is that the starting points adopted by the judge of 16 years for the 1st respondent, and of 7 years for the 2nd respondent were wholly inadequate given the seriousness of the offences. He points to R. v. Kam Chun-pang Cr.App. No. 504 of 1991, where, when dealing with a similar robbery, Macdougall J.A said:

"On a consideration of the facts of this case, we do not think that it can justifiably be said that 20 years was too high a starting point for sentence. Indeed we feel constrained to say that the starting point was too low. It should have been 25 years."

8. Mr. Cross goes on to argue:

(i) that the discount allowed the 1st respondent was too great given that he had been caught red-handed;

(ii) that the court failed to give weight to the fact that the respondents had come to Hong Kong in order to commit this offence;

(iii) that the credit given to the 1st respondent upon the basis that he was only armed when he came to the scene was not warranted; and

(iv) that the 2nd respondent should have been sentenced upon the same basis as the 1st respondent using the same starting point and that the trial judge was wrong to accept the 2nd respondent's assertion, made through counsel, that he was "unaware that firearms were to be used inside the shop".

This last matter was one which gave us considerable concern. The trial judge, when this assertion was made, did not hold a Newton inquiry. In our view, he should have. He observed that he was sceptical, and he certainly should have been, but said that he was prepared to act upon the basis that that assertion was correct. In our view it tests credulity to the utmost to ask a court to accept that a lookout in a planned robbery was not aware that arms would be used. We were satisfied that, given that there were no findings of fact made by the trial judge, it was proper for us to indicate that we would not accept that assertion from counsel and would hold, if the 2nd respondent requested it, a Newton inquiry. In the outcome it was requested, and the 2nd respondent gave evidence and was cross-examined. He said that he had come to Hong Kong with the offender who was killed in order to collect a trade debt. He said, however, that after they had been in Hong Kong for about 8 days, he had still not been made aware of the name or business address of the debtor. He said that he was then asked, out of the blue, to participate in a robbery as a lookout, but said that he was given no information as to the way the robbery would be carried out, and was not told whether others were to be involved nor whether any weapons were to be used. We had no hesitation in rejecting that evidence. We are satisfied that the proper and only inference was that he was a member of the gang and well knew that arms were to be used in the robbery.

9. The matter that most concerns us, as I have already indicated, was whether or not the starting point was manifestly inadequate. We are satisfied that it clearly was. 24 years was a proper starting point for offences of this seriousness. We fix that starting point bearing in mind all of the circumstances, including the fact that the respondents came from China to commit the offence and, in particular, the terrible dangers in which members of the public were placed.

10. We echo the words of Litton, V.-P. (as he then was) in R. v. So Ching-kwan when he said:

"Here the facts were, as we have said, distressingly familiar, involving the actual use of firearms in order to carry out a robbery of a goldsmith shop and to evade arrest. The taking hostage of a young girl who was passing by, the threat to kill her and the use of a gun in an MTR station with many innocent passers-by present showed a total disregard for human life. There is, understandably, very strong feeling among the Hong Kong public at the moment that the perpetrators of offences of this sort should be shown no mercy whatever."

11. As to the 1st respondent, while we are satisfied that his plea should not be accorded the customary full one-third discount we do consider that he is entitled to a substantial discount which we fix at 25%. This will result in a sentence of 18 years on the robbery count. This sentence takes into account all of the circumstances of the offence including the carrying of arms. On the arms charge the sentence will remain the same and it will, as it originally was, be ordered to be concurrent. We are not prepared to give any discount because of the injury he suffered. That he brought upon himself.

12. The same starting point will apply in relation to the 2nd respondent. He is, however, entitled to a full one-third discount of eight years which will reduce his sentence to one of 16 years.

13. We accede to the Secretary for Justice's application and the sentences are varied as indicated.

Representation:

Mr. I.G. Cross, S.C., Director of Public Prosecutions & Mr. Harish Melwanney, S.G.C. for the Applicant.

Miss Rebecca S.M. Li assigned by D.L.A. for the Respondent.