The Queen v. So Ching Kwan

CACC000439/1991

Headnote

Attempt to do what was in fact impossible - to fire a gun which was jammed by the previous cartridge. Haughton v. Smith categories of attempt discussed. Held that the fact that the gun could not be fired does not afford a defence to a charge of attempt to discharge it.

Sentence - Manslaughter. Life imprisonment was proper if the degree of violence used and the general circumstances of the crime showed a real possibility that on release from a determinate sentence the accused might repent the offence. That was the case here.

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Coram: Fuad, V.P., Penlington & Nazareth, JJ.A.

Date of hearing: 8th May 1992

Date of delivery of judgment: 7th July 1992

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J U D G M E N T

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Penlington, J.A.:

1. This is the judgment of the Court.

2. On the 19th August 1991 the applicant was indicted before Ryan, J., and a jury on six counts. These were:

Count 1. robbery of the Po Shing Jewellery & Goldsmith Shop, 186 Queen's Road Central, on the 28th August 1990;

Count 2. possession of a firearm at the time of committing the robbery;

Count 4. false imprisonment of a young woman, Chiu Shuk Yin;

Count 5. shooting with intent at Station Sergeant Lau Chi Hung;

Count 6. attempting to discharge a loaded gun at ' Sergeant 19224, Lee Chong Wing;

Count 7. manslaughter, contrary to Common Law, of Wong Kwok Shing.

(Count 3 was against a co-accused only.)

3. The applicant pleaded guilty to the first three of these counts but not guilty to the 5th, 6th and 7th. He was acquitted on the 5th count but was convicted of the 6th and 7th. He was sentenced as follows:

1st 'count: seven-and-a-half years' imprisonment

2nd count: five-and-a-half years' imprisonment

4th count: eight-and-a-half years' imprisonment

(All to be consecutive with each other)

6th count: ten years' imprisonment (six-and-a-half years, to be concurrent to charges 1, 2 and 4 and three-and-a-half years to be consecutive)

(The total of sentences on counts 1, 2, 4 and 6 thus came to 25 years).

7th count: life imprisonment

4. The applicant, having lodged a notice of appeal against conviction on the charges of attempting to discharge a loaded gun and manslaughter (counts 6 and 7)_, and against sentence in respect of all convictions, has abandoned his application in respect of conviction on the count of manslaughter and against sentence in respect of all the other counts. The appeal against conviction on count 6 and against sentence on count 7 remain.

Background

5. The evidence in this case followed a pattern which has become all too familiar in Hong Kong. On the 28th August 1990 two men, armed with knives and a pistol, entered the Po Shing Jewellery & Goldsmith Shop at 186 Queen's Road Central. One of them was the applicant who carrying the gun. The staff of the goldsmith shop were threatened and gold, jewellery and other ornaments to a value of $1.7 million were taken. There was no resistance.

6. At the same time two other men entered the adjacent King Fook Gold and Jewellery Co. Ltd. at 188 Queen's Road Central and robbed the occupants in the same way. Clearly both groups were acting in unison. All four robbers then fled from the scene in a westerly direction along Queen's Road Central and turned into Mercer Street. Station Sergeant Lau Chi Hung was on patrol in the area, heard about the robberies on his beat radio and saw the four men fleeing in his direction. As they approached the intersection of Des Voeux Road Central and Hillier Street, where there is an entrance to the Sheung Wan MTR Station, there were some other policemen and the applicant then seized a female pedestrian, a sixteen-year-old girl, Chiu Shuk Yin, and pointed the gun he was carrying at her head. Miss Chiu was dragged into the Sheung Wan MTR Station where she was forced down the stairs. At the bottom the applicant turned round, aimed his gun and, it was alleged, fired a shot at Station Sergeant Lau. There is no doubt that the shot was in fact fired but it was the applicant's case that he did not fire at the station sergeant but simply in the air. He was acquitted of that count by a majority (count 5).

7. Other police officers arrived and they pursued the applicant and the hostage along the concourse of the MTR station. When they reached a certain point the applicant threatened Station Sergeant Lau and the other officers and said he would kill Miss Chiu. He then went up the escalator and into Wing Lok Street, together with his hostage. They came to Hillier Street where the applicant attempted to board a motor car which however was able to drive away. He then tried to get into a taxi which also was able to evade him. The applicant then ran across Des Voeux to the other entrance of the Sheung Wan MTR Station where another police officer, Sergeant 19224, Lee Chong Wing, was standing behind a rubbish bin. It was the Crown's case that the applicant approached this officer, still with his hostage and the gun, and when the sergeant called on him to drop his pistol he pointed the gun at Sergeant Lee and attempted to shoot him. The gun however did not go off and there was expert ballistics evidence that after the first shot had been fired the cartridge had jammed in the ejection port and the gun could not be fired again. There were seven live rounds in the magazine but they could not be brought up into the barrel because of the first cartridge blocking the chamber.

8. The applicant was then hit by a shot fired by Sergeant Lee, the hostage, Miss Chiu, having slipped slightly from his grip which enabled the sergeant to do so, and was arrested.

9. It was the applicant's ground of appeal against conviction on this count that he could not be convicted of an attempt to do what was impossible and reliance is placed on a line of authorities beginning with Haughton v. Smith [1973] 58 Cr. App. R. 198. There, Lord Hailsham, L.C., referred to the six categories of attempt set out by Turner, J., in the New Zealand case of R. v. Donnelly [1970] NZLR 980. At 990 he said:

"He who sets out to commit a crime may in the event fall short of the complete commission of that crime for any one of a number of reasons. First, he may, of course, simply change his mind before committing any act sufficiently overt to amount to an attempt. Second, he may change his mind, but too late to deny that he had got so far as an attempt. Third, he may be prevented by some outside agency from doing some act necessary to complete commission of the crime - as when a police officer interrupts him while he is endeavouring to force the window open, but before he has broken into the premises. Fourth, he may suffer no such outside interference, but may fail to complete the commission of the crime through ineptitude, inefficiency or insufficient means. The jemmy which he has brought with him may not be strong enough to force the window open. Fifth, he may find that what he is proposing to do is after all impossible - not because of insufficiency of means but because it is for some reason physically not possible, whatever means be adopted. He who walks into a room intending to steal, say a specific diamond ring, and finds that the ring is no longer there, but has been removed by the owner to the bank, is thus prevented from committing the crime which he intended, and which, but for the supervening physical impossibility imposed by events he would have committed. Sixth, he may without interruption efficiently do every act which he set out to do, but may be saved from criminal liability by the fact that what he has done, contrary to his own belief at the time, does not after all amount in law to a crime."

10. It is the case for the applicant here that his attempt fell into the fifth of Turner, J.'s categories, i.e. he is proposing to do what that which is after all impossible and that, therefore, on the basis of the decision in Haughton v. Smith it is not a criminal attempt. At 212 Lord Hailsham, having cited the earlier decisions in R. v. McPherson (1857) Dears. & B., 197 and R. v. Collins (1864) 9 Cox C.C. 497, C.C.A., said:

"I would consider that 'attempts' in Turner, J's fifth class of case are not indictable in English law and I consider that the purported overruling Collins needs further consideration."

11. In our view, however, the alleged attempt here does not fall within Turner, J.'s fifth category but within the fourth. Lord Hailsham went on in Haughton v. Smith:

"In White [1910] 4 Crim. App. R. 257 a man who put a small quantity of cyanide in the wine glass, too small to kill, was held guilty of attempted murder. This is an example of the fourth of Turner, J.'s cases and therefore criminal."

12. In Donnelly Turner, J., cites the instance of a case coming within his fourth category of the man who attempts to open a window with a jemmy which is not strong enough to do the task. In our view the same position applies if a man attempts to fire a gun but it has jammed and cannot be fired. He is, unable to carry out his intention because he has insufficient means.

13. In R. v. Cheung Wai Leung, Mag. App. 1103 of 1990, Ryan, J., held that if a person puts a stolen bank card into a cash dispensing machine the Crown must prove that the card owner's account was in credit if a charge of attempting to steal from him was to succeed. If the amount is such that no money could have been obtained even if the correct number was dialled the object of the attempt was impossible and could not therefore constitute the crime. That clearly however, in our view, is an example of Turner, J.'s fifth category. If however the card itself was damaged and even if the correct combination was dialled no funds could have been obtained from the machine that would be within the fourth category and would be an offence.

14. In our view, therefore, this ground of appeal must fail. Here there was evidence which was accepted by the jury that the applicant did point a gun at Sergeant Lee which contained live rounds. If the gun had had such a round in the barrel there was no impossibility preventing the applicant firing at the sergeant. What did so prevent him was the insufficiency of the means at his disposal, caused by the jammed cartridge. The application for leave to appeal against conviction is refused.

Sentence

The applicant appeals against his sentence of life imprisonment on the charge of manslaughter.

15. The Crown's case on this count was that Sergeant Lee was entitled to fire at the applicant in self defence and to protect the life of Miss Chiu. what the applicant was doing in holding Miss Chiu hostage and firing at the police officers in a crowded MTR station was clearly something which was unlawful and highly dangerous and resulted in the death of Mr. Wong, albeit not from a bullet from his own pistol but as a result of the return fire from the police, which the applicant must have realised was a likely consequence of his actions. As the police were acting in the course of their duty there was no break in the chain of causation.

16. It is submitted on behalf of the applicant in relation to the sentence of life imprisonment of this count that it was manifestly excessive and wrong in principle because:

(a) it was the result of a freak accident and not an intended consequence;

(b) the applicant was not given any benefit from his clear record; and

(c) he cooperated with the police in their subsequent investigations and again he has not been given any reduction in sentence because of that.

When passing sentence Ryan, J., said:

"  I don't accept that there are any mitigating features in this case except for the pleas of guilty, and I have no doubt that those 3 pleas came as a result of the evidence in respect of them being overwhelming.

In your statement to the police, you said that you had released the girl, being concerned about her and that you were then shot. That might have suggested that you had at that time a pang of conscience or onset of compassion towards her. But you showed your true colours when you gave evidence and said that your concern was that if she was shot, then you would be exposed, and that you had not released but simply moved her partially to one side so that you could more freely use your revolver in your action towards the sergeant.

You also admitted at the time that you were fully aware that other persons - the hostage, the policemen or passers-by - could have been hurt by your actions.

Your counsel on instructions has said to me that you are full of remorse about this matter. I can tell you that the impression I formed of you when you gave evidence is that you are a man totally without remorse for what you have done, other than having being caught.^- And I see it as my duty to show to you that the courts in Hong Kong will not put up with violent crimes of this nature.

.....

In respect of the manslaughter charge the maximum term of imprisonment that can be imposed is life imprisonment. I can see no reason why the maximum should not be applied in this case and accordingly on the 7th charge of manslaughter you are sentenced to life imprisonment."

17. So far as the first ground of appeal against sentence is concerned, i.e. that this was a freak accident and it was not the intention of the applicant that Mr. Wong or any other passer-by be injured, there is no substance in it. Clearly if there had been any such intention the applicant would have been charged with mureder. We have no doubt that any person who behaves in the way that he that he did must realise that he is endangering the lives of innocent persons in the vicinity and, if such is the result, must accept the consequences.

18. We also accept, as did Ryan, J., that the pleas of guilty to some of the charges were only. entered in the face of totally overwhelming evidence. The applicant did offer some degree of cooperation with the police in that he made statements but the evidence which he gave in court was entirely an effort to avoid his own conviction on the 5th, 6th and 7th counts.

19. The courts in Hong Kong have for many years considered that a sentence of life imprisonment should not be passed unless the accused is particularly dangerous either from a mental disorder or because of his criminal propensity. Thomas in Principles of Sentencing, 2nd Edition, 301, said:

"The proper use of the sentence of life imprisonment has been considered in a large number of cases. Their general effect is that the sentence is reserved for persons who have committed offences of substantial gravity and who appear to be suffering from some disorder of personality or instability of character which makes them likely to commit grave offences in the future if left at large or released from a fixed term of imprisonment. The sentence is not normally used as a tariff sentence to deal with offenders of normal mentality who-have committed offences of great gravity."

Here there is no evidence that the applicant suffers from any mental instability. He has no previous convictions though it is to be noted that he is not a permanent Hong Kong resident. It would appear that he and the other robbers had been brought in from Mainland China to commit this offence.

20. Reliance is placed by the applicant on two decisions of this Court. The first is in R. v. Lee Yuk Wah and Another, Crim. App. 74 of 1990. There three persons broke into a video games centre. They were surprised by the owner who they then attacked. Some 64 injuries were inflicted on him involving the use of a crowbar which had been brought by the defendants. Two were acquitted of murder but convicted of manslaughter. The trial judge, when imposing sentence, said

" You have compounded an outrageous disregard for the property of others by adopting a totally needless attitude for the life of the property owner who caught you in the act. Not only did you inflict over 68 injuries upon him, and crack his skull, and strangle him when he interrupted you, but leaving him to die in a pool of his own blood, you then, according to the evidence, returned to the task of stealing his property."

21. This clearly was at the very top end of the scale for manslaughter and indeed, in the light of the injuries inflicted, the verdict was surprising. The two appellants were each sentenced to ten years' imprisonment which, in the case of one of them, was reduced to eight years because he had from the outset offered to plead guilty tomanslaughter. He was also only nineteen at the date of the offence. The Court of Appeal did also however say:

"Further, in offences of violence such as this, a clear record is, as this court has made plain in the past, a matter to which only minimal weight can be given".

22. In R. v. Ko Kam Hung, Crim. App. 587 of 1990 the deceased was part of a group of people who had been playing with model cars and irritated adjoining residents. A group of them rushed down and attacked those below, including the deceased, who was kicked and punched by the accused who finally placed a dustbin over his head and, together with others, jumped up and down on it. The deceased suffered multiple bruises and lacerations and his chest was stove in. The defendant was nineteen and surrendered himself the following day. He also pleaded guilty to the offence of manslaughter. A sentence of eight years' imprisonment was held to be appropriate.

23. 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 show a total disregard for human life. There is, understandably, a 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.

24. We have given anxious thought as to whether the applicant's actions here were of such a nature as to show that there was a real risk that they might be repeated on his release from a fixed term of imprisonment. We are of the view that they were. Apart from the robbery of a goldsmith shop with the threat of a loaded gun the applicant fired one shot in a crowded MTR station. He took a young girl as a hostage and threatened to kill her with what he must have thought was a loaded gun. He only failed to fire again because his gun had jammed. He has shown no genuine remorse for his actions which have resulted in the death of a perfectly innocent member of the public.

25. The application for leave to appeal against sentence is also refused.

Representation:

Mr. Philip Wong (Raymond Chan & Co) for appellant

Mr. T.H. Casewell for Crown