Attorney General v. Chan Kin Chung and Another

CAAR000012/1980

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Coram: Roberts, C.J., Huggins & McMullin, JJ.A.

Date of Judgment: 11th September, 1980

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JUDGMENT

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Roberts, C.J.:

1. This is an application by the Attorney General for a review of sentences imposed on the respondents, who pleaded guilty to various offences in the High Court.

2. The first respondent was sentenced to six years, two years and six years' imprisonment, the sentences to run concurrently. The first and third of those sentences were for robbery and the second for unlawful wounding.

3. The second respondent was also sentenced to six years and six years for the two robberies, to five years for possession of arms without a licence and five years for possession of ammunition without a licence. All these sentences were ordered to run concurrently.

4. In October 1979 the two respondents, the first carrying a knife and the second a loaded .22 revolver, entered the Shamrock Hotel in Kowloon at about 9 p.m.

5. They made their way to the sixth floor, where they spoke to Mrs. Lau, a guest in the hotel, telling her that they were hotel guards and were investigating reports of a bottle being thrown from a bedroom window; she believed them. As it happened, Mrs. Lau was on the way to the room of a friend, Mrs. Tsoi, who opened the door when Mrs. Lau knocked. The respondents told Mrs. Tsoi the same story and were allowed to enter the room. As soon as they did so, the first respondent drew out a knife and the second respondent a revolver. They threatened the two women with their weapons, told them they were going to rob them and made them lie down on the bed while they ransacked the bedroom.

6. Another woman, Mrs. She who was sharing the bedroom with Mrs. Tsoi was taking a shower. She was fetched from the bathroom by the second respondent, made to put on her clothes and to lie on one of the beds.

7. Shortly afterwards, two other guests in the hotel, Mr. and Mrs. Wong, came to the room to fetch Mrs. Tsoi and Mrs. She. The door was opened by the first respondent, who grabbed hold of Mrs. Wong by her hair and pulled her into the room. Mr. Wong followed, protesting, whereupon the first respondent stabbed him in the chest with the knife he was carrying, causing a wound which bled profusely. Mr. Wong was later taken to hospital, where he was detained for approximately 10 days before he was able to return to his home.

8. Fortunately, a member of the hotel staff had seen Mr. and Mrs. Wong being forced into the bedroom and raised the alarm, so that when, a few minutes later, the respondents emerged from the bedroom, having stolen whatever money or valuables they could find there, a police party was waiting and arrested them. They found a knife in the possession of the first respondent and a .22 revolver loaded with six bullets in the possession of the second respondent.

9. We have been referred to various authorities (for example LAM Chi-wai v. R.⁽¹⁾) which make it clear that this court will not interfere with a sentence of six years' imprisonment where an armed gang invades private premises. The references in these cases, however, to "armed gangs", must be taken to mean gangs which take with them knives or other weapons, but not firearms. A clear distinction has been drawn by this court between firearms and other weapons.

10. In the recent case of NG Wai-ming v. The Queen⁽²⁾, this Court stated that we considered eight years to be too low where firearms are used. By "used" we meant carried and displayed but not fired. This is clear from the rest of the paragraph, which explained that if shots were fired in the course of a robbery we would not have thought a sentence of 15 years to be excessive.

11. Taking a sentence of six years' imprisonment as being an appropriate one for robbery, where a gang armed with weapons other than firearms breaks into premises, the carrying and showing of firearms will increase the normal sentence from six years to something more than eight. Furthermore, the carrying of a loaded revolver is an additional aggravating fact which should further increase the appropriate sentence.

12. We consider that a proper sentence for a robbery of this nature would be one of ten years' imprisonment. Had the Commissioner imposed such a sentence, we would not have interferred and we regard six years as manifestly inadequate.

13. In accordance with the principles which have been followed by this court on applications for review, however, we will not increase the sentence to the level which we think it would have been proper for the trial judge to have imposed. We will increase the sentences of six years' imprisonment imposed on the first respondent on counts 1 and 5, to eight years on each count. The sentences of six years imposed on counts 1 and 5 on the second respondent will be increased also to eight years.

14. We see no reason to interfere with the sentences of five years imposed on the second respondent on counts 3 and 4. These will remain concurrent to the sentences on counts 1 and 5.

15. There remains the charge of unlawful wounding on which the first respondent was sentenced to two years' imprisonment. We consider that this sentence should have been made consecutive to the terms imposed for robbery. It is true that, by its very nature, the offence of robbery contains some degree of intimidation or violence. This, however, was a vicious and inexcusable act of violence which was additional to those actions of the respondents which amounted to robbery in law.

16. We therefore order that the sentence of two years for unlawful wounding will run consecutively to the sentences of eight years which are now imposed on the robbery charges. In total, the first respondent will serve ten years and the second respondent eight years.

Huggins, J.A.:

17. I agree with everything which my Lord has said. I would add only in relation to the arms and ammunition charges that we were referred to the case of Faulkner⁽³⁾ where it was said that

"it should be recognized that where an offender carried a firearm, with intent ...."

and I emphasize the words "with intent",

"when pursuing his criminal intention, he can expect and will receive a sentence of imprisonment consecutive to that which would otherwise be imposed ...."

and this is reflected in a passage which was read to us from Thomas Principles of Sentencing, 2nd Ed. at p.56.

18. In the present case there was no evidence of intent as there was in Faulkner's case, where the weapon was used with intent to resist arrest, and that justifies our leaving those sentences concurrent.

McMullin, J.A.:

19. I agree with what has been said by the learned Chief Justice and there is nothing that I wish to add.

Representation:

M. Lucas & H.M. Sinclair for the Crown/Appellant

W. Wong & R.K. Sujanani (D.L.A.) for both Respondents

(1) Crim. App. Np. 820/1978.

(2) Cr. App. No. 400/1979

(3) [1972] 56 Crim. App. R. 594