R. v. Lo Kwok Hung

CACC000472/1991

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Coram: Hon. Sir Derek Cons, V.P., Clough, J.A., & Hooper, J.

Date of hearing: 7th February 1992

Date of delivery of judgment: 7th February 1992

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the court:

1. Lo Kwok Hung, the defendant in the court below, pleaded guilty before Wong, J., to one count of robbery, one count of taking a conveyance without authority and one count of possession of a firearm and ammunition at the time of a robbery.

2. The robbery was perpetrated in a goldsmith shop i Hung HoM at 6:15 in the evening of the 26th April 1990. Three men entered the shop. One had a knife and another a gun, which was later found to have contained live ammunition. The robbers smashed open a showcase and took gold and jewellery to the value of some $650,000.

3. When they left the shop they found. traffic very congested. To facilitate their escape they hijacked a van at gunpoint and, having evicted the driver, they drove themselves away.

4. Two months later, when the defendant discovered that the police were looking for him, he surrendered himself and fully admitted his part in the robbery. He said that he had received $20,000 for his part.

5. He is a single man. At the time of the offence he was 19 years 9 months of age, still on probation for a theft he had committed in the previous year.

6. Counsel, who appeared for him below, said in :mitigation, that the defendant had been ordered into the robbery, in effect, by one of the other defendants and that he did so because he owed money in respect of damage done to an uninsured hired car. The judge sentenced him to six years each on the robbery and the possession of firearms at the time of robbery counts and one year on the taking of the conveyance count. He ordered all to rum consecutively, making a total of 13 years. The defendant now applies for leave to appeal against those sentences.

7. Mr. Macme, who mow appears for him, has spoken on the defendant's behalf with his customary fairness and ability. He has stressed the basic principles which must be observed, with which we would respectfully agree, save that we feel that in offences of this mature a man of 19 cannot expect any significant reduction in his sentence for that reason.

8. The attack upon the sentences is principally aimed at the judge's starting point of 20 years. It is suggested that in April 1990, when the offence was committed that was a suitable starting point for armed robbery upon a goldsmith shop in which a gun was actually discharged. As authority for that Mr. Macrae has referred us to A.G. v. Chan Lee Kong [1986] HKLR 1096. He has also referred us to other authorities.

9. It is, we think, well settled, that robbery of a goldsmith shop in which firearms are involved, but not used, merits sentences of imprisonment in the region of 15 years.If authority is wanted it can be found in The Queen v. Yu Wai Lam Crim. App. 56 of 1991 decided in this court in October of last year. That would be appropriate in the present instance. But then there is the aggravating feature of the hijacking of the van at gunpoint. We do not accept that as an insignificant incident of the robbery itself. It is separate and serious conduct, and being achieved with a loaded gun, in particular it put at risk yet one further life. We accept that credit must be given for the voluntary surrender followed by the plea of guilty, but we find no other mitigating conduct.

10. Looking at the matter overall, as we must do, we are not persuaded that a total of 13 years is manifestly excessive. The application is therefore refused.

Representation:

M.A. McMahon, Crown Prosecutor for the respondent

Andrea Macrae (M/s. Howell Co.) for the applicant