The Queen v. Ip Tin-yan

CACC001109/1982

Headnote

Robbery - Minimum and maximum sentences - 20-30 year range appropriate for very grave cases involving multiple offences sentences above 30 years only in "wholly abnormal'' cases within the description of Court of Appeal (Criminal Division) in Turner (1975) 61 Cr. App. Rep. 67 - Life Sentences an option in such cases and not to be equaled with formal determinate period of 10-15 years.

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A.

Date: 18th May, 1983.

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JUDGMENT

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McMullin, V.-P.,

1. The applicant is one of seven men who were variously charged upon two indictments with a number of serious offences, including robbery, assault, and possession of arms, extending over a period of months between August 1981 and January 1982.

2. Six of them were charged in Criminal Case No. 203 of 1982 upon an indictment containing six counts and three in Criminal Case No. 186 of 1982 involving eight charges.

3. LAU Wai Yen and the present applicant, IP Tin Yan, were, respectively, the 2nd and 3rd defendants in 186 and the 6th and 5th in 203. They are the only defendants to be charged under both indictments.

4. Two of these seven defendants were acquitted of all the offences with which they were charged.

5. Of the remaining defendants, CHOW Sin Ping (1st defendant in 186) received 9 years for a single offence of robbery.  CHIN Hung Man (the 1st defendant in 203) received sentences totalling 18 years for two robberies. Chin's sentences were subsequently, upon appeal, put up to 20 years.

6. The 2nd defendants in 186, LEE Chung Ming, received 20 years upon 3 counts of robbery.

7. For his part in both cases LAU Wai Yan received concurrent sentences of 17 years in respect of each of three robberies. He applied for leave to appeal but abandoned his application shortly before the present hearing. All of these convictions followed pleas of guilty by the various defendants.

8. The sole applicant before us now, therefore, is IP Tin Yan who pleaded guilty to 11 offences of which seven were robberies, all committed between August and September 1982.   The earliest of these six offences and perhaps the most revealing of the character and motivation of the applicant-took place on the 20th of December when, in the company of two of the other defendants, he acquired a police officer srevolver which featured prominently in the subsequent activities of himself and his confederates.

9. The sequence of events thereafter is admirably set forth by De Basto J. in addressing the applicant prior to passing sentence.

"Within that comparatively short time you committed two of these robberies in branches of two well-established banks, another two robberies were committed against different branches of a well-known jewellery shop, and another against a goldsmith shop. In each case (except for the last), not only were handguns used but they were fired in the course of the robbery.

In two of the robberies, 'Molotov cocktails', beer bottle's filled with an inflammable liquid with wicks and mechanisms for igniting them, were found.

In one case, five 'Molotov cocktails' were found inside a jewellery shop you had just robbed and on the pavement outside, plus another nine in the van in which you and your companions made good your escape.

In three robberies, a liquid believed to paint thinner was used: once by being thrown on to the floor of a bank thereby making it highly inflammable; in another case, by throwing it in the faces of the staff of a goldsmith shop thereby temporily blinding them - but, very fortunately for you, with no permanent ill-effects.

In another robbery's totally different nature, you deliberately drove your vehicle in which the 2nd accused was your companion at a uniformed police constable and pinned him against the pedestrian railing whereupon you, obviously well prepared, got out, cut the officer's lanyard and took his revolver and six rounds of ammunition. When a taxi refused to stop you fired at it while your companions threathed the driver with a knife.  You fractured the right arm of the officer you had immobilised. This is the subject of a separate charge.

In January of this year, when you and the 2nd accused were located by the police in a room of the flat you shared with other persons, you deliberately shot at a police inspector saying you were going to kill him. You also fired twice at a detective constable and you again fired at the inspector, narrowly missin his head, but so closely that wooden splinters from the door lodged in his skull. Despite the fact that you were shot, not seriously, you broke a ventilation window between two rooms and fired indiscriminately at a sergeant who was in that room. You finally surrendered after you had fired some twelve shots in this outrageous incident.

That is not all. A few months later, when you were taken to hospital for treatment, you hit one of the two Correctional Officers escorting you with both your hands which were handcuffed, causing that officer actual bodily harm. You escaped from legal custody and ran into a hawker stall where. you picked. up a chopper with which you threatened the other Correctional Services Officer. You were only disarmed when police officers with revolvers drawn approached you and knocked the chopper off your hand.

I cannot remember ever coming across a person with such an appalling propensity to violence. Violence appears to be an addiction with you.  You seemed totally careless of human life, wholly insensitive to the notion of causing serious injury to others. In committing these eleven offences, you deliberately embarked on an orgy of violence, unprecedented in my experience. You are, without a doubt, a threat and menace to society. You have made yourself a social outcast. Contact with you is fraught with danger. I feel strongly that the interests of society require that you be put away for a very long time."

10. The applicant received sentences totalling 28 years for each of the seven robberies and for the shooting with intent and shorter sentences- for the remaining offences All sentences to run concurrently.

11. These sentences exceed by a wide margin any sentence yet imposed in these courts for armed robbery, even where there have been multiple offences. On the other hand, the especially aggravating features of the applicant's offences which have been described entitle this court to say that this case is one of exceptional gravity demanding exceptional and exemplary punishment.

12. It would however be wrong to describe it as the worst possible case of this kind and we are necessarily concerned to ask ourselves, as counsel suggests, how much higher on the scale of determinate sentence this court would be prepared to go than the judge went in this case should worse instances occur.

13. We are not disposed to prescribe - as Mr. Keane has asked us to do - a "tariff maximum" for armed robbery but we think that sentences in excess of 30 years could only be justified by the presence of some wholly exceptional and gratuitous element of malice, cruelty or depravity in addition to such aggravating features as were shown in the present case; or else because the scale and sophistication of the criminal venture justified its being regarded as imperilling the stability of the state or as constituting a virtual waging of war against the community. Considerations of this kind have moved the courts in England to uphold exceptional sentences in some of the spy trials (a good example is Blake(1)) and also in the case which has become known as the Great-Train Robbery.

14. Mr. Keane invokes the English case of Turner ⁽²⁾ for its statement of principle and because the incidents of the crimes which the Court of Appeal (Criminal Division) was considering bear a distinct resemblance to those in the present case. There is a marked similarity between the cases but the English case was if anything more serious. The activities of the accused in Turner covered a period of 4 years involving 20 armed robberies which yielded spoils of one and a quarter million pounds and which resulted in 3 separate trials involving a large number of individuals many of whom were arraigned in all three cases. Eventually some 19 appellants were before the Court of Appeal. They had been variously charged in connection with a series of very well planned and skillfully executed raids on banks, business houses and security vans. It seems to have been accepted that the appellants were all members of the same gang although not all took part in every raid. Guns were used on all the raids and on one occasion they were fired and a member of the public was injured. Ammonia was squirted in the, face of a security guard.

15. That criminal enterprise was described as one of the most serious with which the police had ever had to deal. The court, while saying that the normal sentence for a bank or security-van robbery, where arms were carried, should be 15 years and that that figure was a starting point went on to consider the appropriate range of sentence in the case of a person convicted of several such of ences.

16. Lawtom L.J. says (at page 92) :-

"We have come to the conclusion that something must be added to the basic sentence imposed on those committing more than one robbery, but the maximum total sentence should not normally be more than 18 years. That is about the maximum sentence which should be imposed for crimes which do not come into the category on which we have put the description 'wholly abnormal'."

17. In Turner's case the sentence imposed by the trial courts had varied from 4 years to a totality of 22 years in the case of one of the appellants. Several of the longer sentences were reduced upon appeal, the 22 years being put down to 18.

18. We are in respectful. agreement with the principles underlying these words of Lawtom L.J. but the suggested maximum is another matter. So far as the figure of 18 is concerned three observations are pertinent. Firstly, this relates to the state of affairs in England over 7 years ago; secondly, the level of sentencing in Hong Kong for major crimes of ecial frequency -  robbery and drug offences are prominent among these - have generally tended to be higher than the corresponding level in England; thirdly, in the last 2 or 3 years robberies involving banks, goldsmith and jewellery shops and other business premises have been on the increase notwithstanding the imposition of substantial terms of imprisonment in cases taken before the courts.

19. The suggested minimum of 15 years where firearms are used in the course of robbery finds approval in NG Wai Ming and others(3) although Roberts C.J. specifically mentioned only the case where firearms] have actually been discharged. However, we are informed that in a very recent case the Chief Justice imposed a sentence of 15 years where guns was merely carried. We think that 15 years. is an appropriate starting point in such cases as we are now considering and where a single offence only is in question.

20. On the basis that this was not in the "worst case" category we asked Mr. Pritchard what sentence should be appropriate where the offence fell within that category and he suggested that the proper sentence would be imprisonment for life.  That is at least a logical reply since the distinction between a life sentence (available in robbery case) and a sentence of 30 to 40 years imposed, let us say, upon a man between his mid-twenties and mid-thirties might, for practical purposes, tend towards the academic, at least if the former were truly a sentence for life.

21. One of the grounds of appeal submits that a sentence of 33 years would in practice result in the prisoner suffering a substantially longer period of imprisonment than would be the case if a life sentence had been imposed. This reflects a popular misconception which is by no means supported by the information made available to this court resulting from inquiries made, with the consent of counsel, from the Department of Correctional Institutions.

22. Whether a life sentence has resulted from the order of the court or by commutation of a death sentence, the sentence - in common with the other sentences categorized in Rule 69A of the Prison Rules - comes regularly under the scrutiny of the Committee of Re View which may recommend commutation to His Excellency the Governor. We are assured that every case is dealt with upon its particular merits. This applies equally to the determinate as to the indeterminate sentences specified in the rule.

23. We understand that since 1975 official policy has been to use the power of commutation very sparingly. The actual statistics are not very helpful since the number of life terms ordered by the courts over the last two or three decades is small. But we are informed that of the 9 persons presently serving life sentences imp imposed by he court the earliest in time to be sentenced received his sentence on the 22nd of September 1963, almost 20 years ago. That sentence has not since be shortened upon review and all 9 prisoners are still in custody.

24. We think therefore that the courts in this territory must regard the life sentence as being either that in truth or else as being one of a very considerable duration which is not to be equated with a formal figure of 10 to 15 years. In any event, we think that in estimating the gravity of any crime for the purpose of sentence the courts should not pay regard to the uncertain possibilities of executive action.

25. Applying the Turner principles to the present case we think that the judge's starting point of 33 years - suitable in a case of abnormal character in the sense we have indicated - was manifestly too high. The range of 20 to 30 years would we think, have been appropriate in view of the aggravating features of the case including, notably, the multiplicity of offences and the use of the gun at the final shoot-out at 261 King's Road. As to this last episode we cannot accept Mr. Keane's submission that the applicant fired indiscriminately and in desperation without the intention of killing or seriously injuring anyone. We find no reason to suppose that the defendant did not mean exactly what he said just before firing in the direction of Inspector Fung, and it was fortunate indeed that the Inspector suffered no more than superficial injuries to the head from flying splinters of wood.

26. Taking the present case as something less than a "worst possible instance" we think the figure of 28 years would have been an appropriate starting point. On the other hand, a discount of 5 years for plea was in our view, and considering all the circumstances, too liberal. Three years is quite sufficient acknowledgement of this while maintaining a reasonable apportioning of culpability in relation to the other defendants. Treating the hearing of this application as that in the appeal we allow the appeal and set aside the sentence of 28 years on the robbery and shooting with intent: counts substituting therefor in each case a sentence of 25 years.

(1)    (1961) 45 Cr. App. R. 292

(2)    (1975) 61 Cr. App. R. 67

(3)    (1980) H.K.L.R. 228

Representation:

Desmond Keane, Q.C. and Miss Fi-lan Chua (D.L.A.) assigned for Appellant. R. Pritchard for Respondent/Crown.