R. v. Guo Jun

IN THE COURT OF APPEAL

No. 366/96
(Criminal)

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Coram: The Hon. Litton, V.P., Sears & Yeung J.J. in Court

Date of hearing: 30 January 1997

Date of delivery of judgment: 30 January 1997

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J U D G M E N T

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Yeung, J. (giving the judgment of the Court):

1. The Applicant, Guo Jun, pleaded guilty to a charge of attempted robbery, a charge of possession of arms and ammunition without a licence and a charge of false imprisonment. In respect of those charges, he was sentenced to 10 years, 6 years and 3 years imprisonment respectively. The sentences on the charges of attempted robbery and possession of arms and ammunition were to run consecutively but concurrently to that on the charge of false imprisonment, making a total of 16 years imprisonment. The Applicant now seeks leave to appeal against the sentence.

2. The facts of the case indicated that the Applicant, together with another, entered the victims' shop when it was about to be closed shortly before midnight on the 27th October 1995. They threatened the victims with a gun before ordering them to remove their valuables from their persons. One of the victims then directed the Applicant's attention to a cash register and took the opportunity to run out of the shop to alert the police and the two robbers then fled.

3. The robbers boarded a taxi and were pursued by a party of police officers. When the taxi was blocked by the traffic, the robbers then alighted and fled on foot.

4. The Applicant at that time was carrying a gun and a shot was fired. The police refrained from firing at the Applicant for fear of hitting the passing pedestrians and the traffic.

5. The Applicant then boarded another taxi and he threatened the driver and the passenger with the gun. It appeared that he pointed the gun at the driver and he used the passenger as a shield against the pursuing officers.

6. Eventually, the taxi was surrounded by the police officers when it was held up by the traffic. The officers then pointed their guns at the Applicant who also pointed his gun at them. Subsequently, the Applicant threw his gun out of the taxi and he was then arrested.

7. The Applicant's gun was found to be a Chinese-made type 54 self-loading pistol and it was loaded with 6 rounds of ammunition, one in the chamber and five in the magazine. The facts suggested that a further 17 rounds of ammunition suitable for the Applicant's gun was also seized from his person.

8. The learned trial judge accepted that the shot by the Applicant was fired accidentally rather than intentionally when he was confronted by the police officers. This in our view can be described as a lenient view taken of the evidence before him. The learned trial judge also said there were far too many people coming from the Mainland to commit serious crime and he took it as an aggravating factor.

9. The learned trial judge considered it appropriate to adopt a global starting point of 20 years and he reduced it to 16 years by reason of the Applicant's plea of guilty to the charges. He also said in the course of sentencing the Applicant that, "even if you had not pleaded guilty, you would have been convicted after trial."

10. There can be no doubt that the offences in question are very serious. Even if the Applicant had not intended to fire any shot, when he was carrying a firearm in the course of a robbery, he must have anticipated that firearms could be used by him or by the police officers.

11. There have been incidents when innocent passers-by were killed or seriously injured in similar circumstances when the robbers opened fire and the police officers found it necessary to do the same. In our view, the public must be protected from unscrupulous behaviour such as that of the Applicant.

12. In our view, this is perhaps a rather bad case of the type when the Applicant in the course of his escape, threatened a taxi driver with a gun and used the passenger as a shield.

13. We do not consider an overall starting point of 20 years to be in anyway excessive. We are concerned with whether the 20% discount given to the Applicant by reason of his pleading guilty to the charges was correct when it was agreed that he in fact tried to plead guilty at an early stage.

14. It is true to say that there has been a practice in the courts in Hong Kong, in order to encourage accuseds in appropriate cases to plead guilty, that a guilty plea will reduce the sentence by one-third. But this practice is not a strait-jacket rule. In our view, the trial judge must be given some discretion on matters of this kind.

15. We have considered the nature of the charges and the facts of the case. We are not of the view that the overall sentence of 16 years imprisonment is excessive in the circumstances. A global view of the Applicant's criminality was rightly taken by the Judge. This is, in our view, the most important single factor so far as this application for leave to appeal is concerned. In the circumstances, the application for leave to appeal against sentence is refused.

Representation:

Mr. A.A. Bruce, Q.C. & Mr. Edmond Lee, Crown Prosecutor, for the Respondent.

Mr. Michael Poll, assigned by Director of Legal Aid, for the Appellant.