The Queen v. Wong Yu Ping and Others

CACC000386/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Fuad, V.-P., Hunter, J.A. & Hooper, J.

Date of hearing: 19th April 1988

Date of delivery: 19th April 1988

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J U D G M E N T

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Hunter, J.A. :

1. The four applicants before this court, each seek leave to appeal against the sentences imposed upon them by Deputy Judge Daniell on 28th July 1987, following their convictions on one or more counts of robbery. The first applicant, Wong Yu Pin was found guilty on six counts of robbery and one count of conspiracy. The second appplicant Lai Tat Chiu, was found guilty on four counts of robbery and one count of conspiracy. The third applicant, Lam San To was found guilty on one count of robbery and the count of conspiracy. The fourth applicant, Hong Kai Man, was found guilty on three counts of robbery and the count of conspiracy.

2. The robberies all followed the same pattern. They took place between 15th December 1985 and 28th May 1986. The targets in each case were goldsmith and jewellery shops. A gang of masked men, three or four in number, invaded the shop. On every occasion a firearm or firearms were use threaten the' staff and anybody in the vicinity. Mercifully on only one occasion, relating to the second count, were shots actually fired. A particularly unpleasant feature of the cases is that on at least four occasions hostages were taken. Instead of using warning shots to scare their victims, one person, a member of the staff, a security guard or a passer-by was seized and held, usually with the pistol to his head. He was held in that position until the robbers had completed their task and helped themselves to what they wanted. On at least one occasion knives were used. The sums involved on the totality of the counts for which the first applicant was convicted, exceed HK$2.8m. The conspiracy story was simple. It was a planned robbery which had to be aborted at the last moment because the presence of the police was detected.

3. At the conclusion of the trial, the judge was faced with a difficult task in assessing the respective degrees of criminality of the persons who had been convicted before him. At the outset when he was imposing sentence he said that strictly speaking all the offences were separate, and so he should be imposing consecutive sentences. In this he was correct. But equally he pointed it out that he would then arrive at figures which would he quite unacceptable. So he approached each of the offenders , on the principle of what was the appropriate sentence which represented the totality of that person's criminality in relation to these counts. We respectfully agree with that approach and intend to follow it.

4. As far as the first applicant is concerned, the, tot ality of the sentences on him was twenty-five years. That the judge achieved by imposing sentences of twenty years on counts one, four, five, seven and eight a sentence of twenty-five years on count two which was the count in relation to which four shots were fined at a police officer and ten years on the conspiracy count, count six. The question is whether twenty-five years is the right total sentence for the first applicant.

5. He played as the judge found a key role in these robberies, in obtaining and using guns and in threatening, hostages. He responsible for six robberies, involving a sum of HK$2.8m, in which a number of persons were made to feel that they were in a position of acute peril. We can see no reason for disagreeing with the judge's assessment of this applicant's total criminality, and his, application is dismissed.

6. The second applicant was sentenced to concurrent sentences of eighteen years on counts one, five, seven and eight, for robbery, and to a concurrent sentence of ten years on count six which was a conspiracy count. Two matters have been urged in particular upon his behalf. The first is that he had theretofore a clean record. This regrettably counts for very little with criminality of this degree of seriousness. Secondly, he was in fact only the driver of the get away vehicle in the four counts of robbery on which he was found guilty. We were urged therefore to conclude that his was a minor role which should be reflected in the sentence. But of course it took three or four members of this single gang to carry out each of these robberies. The driver of the get-away vehicle played a vital and important role in support of that gang. It is true that this applicant was not directly concerned in any violence to anybody. But on each of the four counts on which he was found guilty; namely one, five, seven and eight; hostages were taken and firearms were used. He must have appreciated after participating in the very first robbery that that was the way this particular gang operated. The effect of the sentences imposed by the judge is that he should serve a total term of eighteen years. We cannot disagree with this assessment of criminality. His application is like wise dismissed:

7. The third applicant was found guilty on two counts one of robbery, count seven, in respect to which he was given a sentence of eighteen years; and the conspiracy count; ten years. Now the robbery covered by count seven was s a serious matter. It was one in which a hostage was particularly ill-treated. Standing alone it is difficult to criticise the sentence that the judge imposed for that robbery. But it was the only offence of robbery which this man committed. The sum involved was about half a million dollars. It is unlike the robberies committed by both the second and the fourth applicants where the-sums involved are very much greater. Although therefore it is difficult to criticise this sentence in isolation, it does not in our view, sufficiently reflect this defendant's degree of criminality, when judged against that of the other people with him in the dock.We think that the third applicant's criminality here would be better measured by a sentence of fifteen years imprisonment. Accordingly his application is allowed, and his appeal is, allowed to that extent. There will be substituted in respect of count seven, a sentence of fifteen years imprisonment.

8. The fourth applicant was found guilty on three counts of robbery : on counts five and eight he was sentenced to eighteen years imprisonment; and on count seven to twenty years. He was also found guilty on the conspiracy count and sentenced to ten years  The sum involved on the three robbery counts is about HK$1.6m. Substantially the best point that can be urged upon us by way of mitigation in his case, is his age. He is now just twenty years of age, and the sentence imposed upon him is a very heavy sentence for a young man of that age. The problem about him however is this. He had before these offences were committed a very unattractive criminal record, including violence. He was responsible for what the judge described as a very nasty incident on count seven, because it was he who seized the cashier hostage by the hair and apparently dragged him across the shop to the counter. This event was witnessed by an observing video camera. That no doubt explains why the judge sentenced him to twenty years on that count as opposed to eighteen on the other two counts of robbery. We are concerned about his age but it is plain that he is in criminal terms old beyond his years. Having considered his position very carefully, and in relation to the criminality of the other applicants, we can see no reason for disagreeing with the trial judge's sentence. Accordingly his application is also dismissed.

Representation:

C.D.F. Coghlan, C.C. for Crown/Respondent

D. Keane, Q.C., Mrs. Lo Sai Chun (M/s Anthony, Kwan & Co) for first, third and fourth Applicants

G. Rodway, Q.C., Andrew Macrae (M/s Tang, Wong S Cheung) for second Applicant