Tse Wo-ping v. The Queen
Read the full judgment text of CACC 623/1981 on BabelCite. This Court of Appeal judgment was delivered on 18 March 1982 before Li JA (with McMullin VP and Silke JA on the coram).
Criminal law – attempted robbery – attempted use of firearms to resist lawful apprehension – sentencing – appeal – Criminal appeal – Whether totality of 18 years manifestly excessive – Whether s.31(1) Arms and Ammunition Ordinance requires consecutive sentence for firearms offence – Whether common intent to use firearm can be inferred against a non-shooter – Resisting arrest as aggravating factor – Identification of robber by shop proprietors – Cautioned statement admissibility – Four-man robbery of Shui Hing Watch Company: gunman fired two shots, two accomplices used axes on watch displays, fourth robber wore yellow shirt and carried a plastic bag – Police officers on patrol confronted robbers; gunman killed in exchange of fire, fourth robber injured and arrested – Cautioned statement admitted in which appellant admitted joining one Ah Chiu and knowing a gun was to be obtained for the robbery – Held: no merit in renewed application for leave to appeal against conviction; jury amply justified in finding appellant one of the robbers, identified by the Chung brothers while fleeing – Common intent to use revolver both to frighten victims and, if necessary, to resist arrest could be inferred, so conviction on second count stood – On sentence, applying NG Wai-ming & Others v. The Queen, 15 years is appropriate for this kind of attempted robbery with firearms, but may be increased by aggravating factors – Section 31(1) Arms and Ammunition Ordinance makes the second count a separate offence carrying a sentence additional and, in principle, consecutive to the sentence for the underlying offence – Resisting arrest is an aggravating factor – Trial judge's totality of 18 years (18 years concurrent, or 15 years consecutive to 3–4 years) not manifestly excessive – Appeal against sentence dismissed – Application for leave to appeal against conviction refused on both counts.
Legal issues: Adequacy of grounds for renewed leave to appeal against conviction · Whether totality of 18 years for attempted robbery and attempted use of firearms to resist arrest is manifestly excessive
Outcome: Application for leave to appeal against conviction refused on both counts; appeal against sentence dismissed.
Cited by 5 cases
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CACC000623/1981 Convictions of attempted robbery and attempted use of fire-arms to resist lawful apprehension - sentenced respectively to 18 years and 12 years concurrent. Held: By itself 18 years for attempted robbery excessive
BETWEEN
Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 18 March 1982 __________ JUDGMENT __________ Li, JA.: 1. The appellant was convicted of 2 offences: attempted robbery for which he was sentenced to 18 years imprisonment and attempted use of firearms to resist lawful apprehension for which he was sentenced to imprisonment for 12 years. He applied for leave to appeal against conviction and sentence on the 8th of July last year. Leave to appeal against conviction was refused but leave to appeal against sentence was granted by the single judge on the 11th of December last year. The single judge, at the same time, granted the appellant a Legal Aid Certificate in respect of his appeal against sentence. The appellant renewed, in person, his application for leave to appeal against conviction on the 22nd of December last year. 2. A short summary of the grounds in support of his renewed application for leave to appeal against conviction are that he was arrested by mistake. While he was in hospital, the sergeant who took his statement threatened him, told him to be cooperative and dictated the statement to him. There was a conflict of evidence in the prosecution witnesses about the appellant carrying a nylon bag. Some said he carried nothing. There was no identification parade, no weapon found on the person of the appellant. Lastly, there were discrepancies between the evidence of some witnesses in court and their statements to the police. 3. The facts giving rise to the arrest and conviction of the appellant are that on the 7th of January last year, at about 7.00 p.m., four men went into Shui Hing Watch Company. The 1st man had a gun in his hand, shouted "Robbery". Then he fired 2 shots at the ceiling of the shop. Two other men, each held an axe, tried to strike on the glass showcases displaying various watches without success. The 4th person was seen holding a plastic bag or nylon bag. He wore a yellow shirt, in the course of the robbery, the 2 proprietors, Mr. CHENG Chung-fan and CHENG Chung-biu, were in the shop with 2 employees. Mr. CHENG Chung-fan went straight into the accounts office to activate the robbery alarm. Both he and his brother, Mr. CHENG Chung-biu, insisted they had ample opportunity to keep the robbers in sight. 4. A couple of police officers on patrol - sergeant 1971 and detective constable 9370 - were in the vicinity. They heard the noise of people trying to break glass. They realized that there was a robbery going on in the Shui Hing Watch Company. They approached the company, shouted to the robbers that they were police officers and told them to stop. 5. Realizing that their attempt to rob had failed, all the four robbers rushed out. As they ran away, the person who was with the gun, aimed his gun at the two police officers who returned the fire. As a result, the person who held the gun was killed by the police officers. The appellant was injured on the neck. 6. He was taken to Queen Elizabeth Hospital where a statement was taken from him under caution. A doctor gave evidence that the appellant was not threatened by the sergeant. The appellant's statement was admitted in evidence and was put before the jury. In that statement, the appellant admitted that he was induced by one Ah Chiu to rob this watch shop, and the man who held and fired the gun was brought in to do the act with the appellant and his confederates. 7. Having regard to the evidence, there was ample justification for the jury to come to the conclusion that the appellant was one of the robbers, particularly, when he was caught while he was running away. After he was caught he was identified by the Chung brothers as one of the robbers in the yellow shirt. 8. There was, at one stage, some slight doubt in our mind that, having regard to the provisions of subsection 1 of section 31 of the Arms and Ammunition Ordinance and the fact that the gun was not in the hand of the appellant, it might be said that he was not the person who attempted to use the firearm to resist arrest of himself or his partners in crime. However, under caution, he admitted that he knew he was going to rob with this Ah Chiu. He knew that a gun was to be obtained or rented for the purpose. He saw 2 shots being fired at the ceiling. There was sufficient evidence for the jury to draw the inference that there was a common intent that the gun be used for the purpose of the robbery so as to carry it out to fruition. A robbery cannot be successful if anyone of the robbers is caught. The common intent was that the revolver was carried and to be used not only for the purpose of frightening the victims, but also, if necessary, to resist arrest. To that extent, we agree with the argument advanced by counsel for the Crown. For these reasons, we see no merit in the application for leave to appeal against conviction and leave to appeal against conviction in respect of both counts is refused. 9. With reference to the appeal against sentence, learned counsel for the appellant has filed 3 grounds. The first is that the trial judge failed to tare adequately into account that the defendant played a very minor role and that he had suffered injury during the course of the robbery. 10. The second one is that the trial judge failed to take adequately into account that the defendant was not in actual possession of the firearm. 11. The third one is that the term of 18 years imposed is manifestly excessive. 12. At the outset of this appeal, learned counsel quite properly abandoned that part of the 1st ground based on that the appellant suffered injury. However, he emphasized that the appellant's role in the whole matter was comparatively minor when compared with the role played by the other three. All that the appellant had was a plastic bag. He had no weapon. Having regard to these, a sentence of 18 years imprisonment was manifestly excessive. He quite properly took us through a series of decisions by other divisions of this court. We can, as an example, repeat one which he cites. In the case of NG Wai-ming & Others v. The Queen (l) , in which the Chief Justice said at page 9 of that judgment as follows:
On this basis, Mr. Kwan submits, after a review of other cases, that a term of 15 years is appropriate. The trial judge was brief as to the reason for his sentence. It is difficult to find the basis of his approach. He imposed a sentence of 18 years as a deterrent sentence. 13. Having regard to the decision in the case of NG Wai-ming(l) , it is possible that a sentence of 18 years regarding the account of attempted robbery alone was excessive. However, the appellant was indicted with 2 counts of serious offences including one of using firearms to resist arrest. Subsection l in section 31 of the Arms & Ammunition as it then stood provided that:
In other words, the provisions of the subsection creating the offence which formed the subject matter of the second count should carry a separate sentence. Such separate sentence should be consecutive to the one imposed in respect of the first count. The legislature made it mandatory the learned trial judge in this case imposed a sentence of 18 years to the attempted robbery and another sentence of 12 years for the second count of using firearm to resist lawful apprehension. He ordered the 2 sentences to be concurrent. It might have been better had he imposed a sentence of 15 years in respect of the attempted robbery and another 3 or even 4 years in respect of the use of firearm to resist lawful apprehension and made the sentences consecutive. We are not too clear whether he awarded the 18 years in totality as a deterrent or as an overall sentence. 14. In any event, we are of the opinion that, having regard to the circumstances, a totality of 18 years is not manifestly excessive. We also observe that although 15 years imprisonment is appropriate for this kind of robbery or attempted robbery, yet such sentence may be increased by aggravating factors. Resisting arrest is certainly one of the aggravating factors. The trial judge might have thought that in view o￡ the aggravating factor, he increased the appropriate sentence of 15 years to 18 years and made the sentences concurrent. In our opinion the totality is not wrong, the sentence is not excessive, we dismiss this appeal.
(1) Criminal Appeal No. 400/1979 Representation: Mr. T. Kwan (D.L.A.) for appellant Mr. Reid for Crown/respondent |