HKSAR v. Lui Kam Ming

CACC 273/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 273 OF 2007

(ON APPEAL FROM HCCC NO. 45 of 2007)

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Before:   Hon Stuart-Moore VP and Lunn J

Date of Hearing: 16 July 2008

Date of Judgment: 16 July 2008

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J U D G M E N T

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Stuart-Moore,VP (giving the judgment of the Court):

Background

1.On 2 August 2007, the applicant pleaded guilty to five counts of robbery and was sentenced by Mr Recorder McCoy SC to a total of 23 years’ imprisonment against which he now seeks leave to appeal.

2.The Summary of Facts accurately described the first four counts of the indictment as a series of armed robberies committed by a gang of sophisticated robbers who had studied their targets and were aiming at high stakes.  The gang consisted of a so-called ‘mastermind’ from Hong Kong (Cheng Chao-liang alias Lau Ho-fat), two Mainlanders Tso Kin-hong and Yeung King-ngai), who posed as members of a tour group when they entered Hong Kong, and the applicant who lived in Hong Kong and whose local knowledge was important to the gang.

3.The offences in counts 1 to 4 were committed between 13 January 1997 and 22 January 1999.  Each offence was aimed at security officers carrying substantial sums of money and on each occasion at least one handgun was produced to effect the robbery.  The last offence was entirely separate.  It was committed in a different style with one Choi Chun-hung who was not connected to the earlier robbery gang.  This offence involved the use of a stun gun.

The facts

1^st Count

4.The robbery in the 1^st count was committed on 13 January 1997 in broad day light outside the Hong Kong Jockey Club Off-Course Centre in Castle Peak Road.  The applicant played the role of a lookout while three others, two armed with pistols, tackled the security officers who were carrying $1.5 million.  During the course of the robbery, one of the security officers (PW2) was relieved of the shotgun he had been carrying.  The description of the robbery in the Summary of Facts was as follows:

“7. In the course of the robbery, one of the culprits gripped PW1’s neck from behind and brandished a pistol which he pointed at PW1’s chest and said in Putonghua ‘Don’t resist. Surrender. If not, you will be shot to death.’ PW1 was very scared and he placed the cash box on the ground and raised his hands to surrender. He also surrendered a key to the culprit who threatened him with the pistol. A second culprit pointed PW2’s Remington shotgun (surrendered by PW2 during the ordeal) at PW1’s waist during the incident. PW2 was also threatened at gunpoint and placed the shotgun he was holding on the ground. The culprits hijacked a taxi and fled. The taxi driver Cheuk Yiu-keung (PW4) was also threatened at gunpoint. Later, the taxi was found in a carpark near Tsuen Wan MTR Station. The empty cash box, its padlock and key and PW2’s shotgun were subsequently recovered from the staircase leading to the carpark of Tsuen Kam Centre.”

5.Following his arrest over nine years later, the applicant admitted he had acted as a lookout for the gang.

2^nd Count

6.The 2^nd offence in this series occurred a week later, on 20 January 1997, when two security guards were attacked at 9.30 am in a similar way to the method used in the 1^st count.  Three robbers played a role in physically taking the money on this occasion.  The guards had just collected $800,000 from a bank in Castle Peak Road when one of them had the shotgun he was carrying taken from him at gunpoint.  The other guard, who was carrying the money, was confronted by the other robbers, one of whom was carrying a pistol.  The driver of an armoured escort vehicle was also threatened.  He was told that his colleague would be shot dead if he made any report to the police.  Having accomplished their purpose, the gang then hijacked a taxi and the driver was ejected.

7.The applicant’s role, as he again admitted, was that of a lookout for the gang.

3^rd Count

8.Nearly eleven months later, just before 3.00 pm on 17 December 1998, the gang struck again and stole a cash box containing $1.5 million from a security guard after he had collected it from the Hong Kong Jockey Club Off-Course Centre at Richland Garden Shopping Centre in Kowloon Bay.  One of two culprits in this 3^rd offence pointed a pistol at the guard’s chest and demanded the code or remote control to the cash box.  The guard said that he did not have these and in their endeavour to open the box with a knife, the robbers took their eyes off the victim who ran to a security vehicle where the driver activated the alarm.  The robbers fled with the cash box and ejected a taxi driver from his vehicle before driving away in it.

9.The applicant in his later confession stated that he had hailed the taxi.  As he fled the scene with the other robbers, he described how the stolen cash box had exploded inside the taxi and had to be discarded under a footbridge.  Hence, he received no remuneration for the role he had played.

4^th Count

10.At 10.30 am on 22 January 1999, the 4^th offence in the series, two security guards, who had collected $2.5 million from a bank in Nathan Road, Mongkok, had just got into their security vehicle and were about to close the door when one of them felt something in his back.  Two pistols were pointed at the guards and the two men holding them jumped on board the van, joined a moment later by a third robber.  Three bags, containing $1.5 million, were taken by these men and the shotgun carried by one of the guards was also taken.

11.The applicant again admitted having had the role of lookout.

5^th Count

12.The 5^th count related to the robbery of a gold ornaments salesman who, on 10 October 2000, was carrying goods worth $300,000 when he went to a restaurant for lunch.  He was robbed by two men at about 1.15 pm after he had gone to the toilet.  One of them held a stun gun at his waist which caused him to hand over the bag of gold ornaments he was carrying.  The robbers fled after one of them had failed to stun the victim with the stun gun and had been kicked by the victim.  In the confusion, the robber holding the stolen bag, dropped it at the scene.

13.The applicant gave himself up to the police in Hong Kong on 23 October 2006, having fled to the Mainland a few hours after this last robbery.  He had notified the police that he intended to surrender in regard to the offence covered by the 5^th count.  When he was arrested, he immediately admitted his involvement in that offence and, later, when questioned about the other robberies, he duly confessed his participation in those as well.

Mitigation

14.A lengthy mitigation document was placed before the recorder by Mr Tolliday-Wright who also appears for the applicant in these proceedings.  He set out several grounds of mitigation, making the point that the applicant had surrendered to the police on the 5^th count knowing that he was wanted by the police because he “missed his wife and son” and wished to “turn over a new leaf”.  It was also pointed out that in none of the robberies had any firearm actually been discharged.

15.Other features of the mitigation, aside from the pleas of guilty were of little or no weight, including the fact that the applicant received only a small gain for his involvement and played what was said to be a “less active” role than the others.  It was also said that he was a “reluctant” participant, albeit not under duress as that term is properly understood in law.

Sentencing

16.In passing sentence on 2 August 2007, the recorder adopted a 15-year starting point for each of the robberies in counts 1 to 4 whereas, on the 5^th count, a 6-year starting point was taken.  The recorder then reduced each sentence by a third to reflect the guilty pleas and, on the 5^th count, he increased the discount in view of the applicant’s voluntary surrender to the police for that offence.  In the result, 10-year sentences were imposed on counts 1 to 4 and a 3½-year term was passed on the 5^th count.

17.The recorder then considered totality.  As it is about this aspect of the case on which this application is mainly focused, we pause here to say that other members of the gang had been sentenced several years earlier by Jackson J for their participation in this series of robberies, reflected in counts 1 to 4.  Mindful that this was so, the recorder said:

“The two features in this case, which are to your credit are that you have pleaded guilty and you came back and, in addition, how another division of the High Court dealt with the other co-robbers. It is a fact that in relation to the person admittedly the mastermind, Cheng Chao-liang, that this court sentenced him for four of the same counts which you face, Counts 1 to 4. In relation to two of the other robbers, Tso Kin-hong and Yeung King-ngai, the same judge, Jackson J, also sentenced them.

Robbery of: banks, jewellery shops, security guards carrying large sums of money, forms a special class of robbery recognised in sentencing. The Court of Appeal has said that the starting point for each single offence should be in the region of 15 years’ imprisonment. That means that that 15 years can be more or less, depending on the aggravating circumstances. I have identified the aggravating features in this case and I have considered the starting point of 15 years adopted by Jackson J in relation to the others. With much hesitation, I have decided I have to follow that starting point. Had I been unencumbered by that series of decisions, I would have exercised a starting point of 16½ years for each of Count 1 through to Count 4. So in relation to Counts 1 to 4, I will adopt a starting point of 15 years’ imprisonment.”

18.Although the outcome was not affected by the recorder’s preference for a 16½-year starting point, in our view there can be no criticism of the starting point of 15 years which Jackson J had adopted for each of these offences as this was in complete accordance with sentencing practice.

19.After dealing with his reason for giving greater credit on count 5 having regard to the applicant’s decision to give himself up, albeit the applicant had done this in the knowledge that he was on a “wanted” list for that offence, the recorder continued by saying:

“As I have to impose five separate sentences there will be overlap between each of the five separate sentences. I will be required to identify a starting point, an intermediate point and finally a terminal point which takes into account totality for all five counts. Therefore, in relation to Count 1, I adopt a starting point of 15 years’ imprisonment. I reduce that by one-third to reflect the plea of guilty. I am not able to give any other reduction in relation to Count 1. So on Count 1, you will go to jail for 10 years.

In relation to Count 2, I adopt the same starting point of 15 years. I reduce it by a third for the plea of guilty, which comes to 10 years but I order that 4 years of this sentence on Count 2 shall run concurrently with the sentence on Count 1, meaning that on Count 2 you will serve a consecutive sentence of 6 years’ imprisonment.

In relation to Count 3, I adopt the same starting point. It is reduced by one-third for your plea of guilty. In relation to this count, I order that 6 years of this sentence shall run concurrently with the sentence on Count 2, meaning a further consecutive sentence of 4 years’ imprisonment is imposed beyond that imposed on Counts 1 and 2.

On Count 4, the same starting point, the same reduction for a plea of guilty but I order that 8 years of this sentence shall run concurrently with the sentence on Count 3, meaning that on Count 4 an effective further consecutive sentence of 2 years’ imprisonment is imposed beyond that on Counts 1, 2 and 3.

On Count 5, I have imposed a jail term of 3½ years’ imprisonment but 2½ years of this sentence shall run concurrently with the sentence on Count 4, meaning on Count 5 an effective further consecutive sentence of 1 year is imposed beyond those imposed on Counts 1, 2, 3 and 4. It follows that despite the cogent submissions made by Mr Tolliday-Wright, I find myself simply unable in terms of my perception of my duty, to follow the decision-making of Jackson J as to totality, for such a professionally planned and organised series of serious robberies involving the presentation of firearms.

I have given this matter the most anxious consideration overnight but, in my judgment, the extent and nature of this type of armed robbery is so serious that I have concluded that in summary you, Lui Kam-ming, will go to jail for 23 years’ imprisonment in total. Take him down.”

Grounds of appeal

20.As Mr Tolliday-Wright submitted, a notional starting point of 34½ years’ imprisonment had effectively been taken by the recorder as representing an appropriate totality after trial for this series of offences.  This differed considerably from the approach taken by Jackson J to the other robbers in this gang and the prosecution had very properly gone to the trouble of producing a chart to show how Jackson J had dealt with the other robbers.  In short, the mastermind, Cheng Chao-liang, was sentenced after pleas of guilty to concurrent terms of 10 years’ imprisonment on counts 1 to 4 and one further count of robbery in which the applicant was not involved.  He was also sentenced to a total of 10 years’ imprisonment for a completely separate robbery and for making use of a firearm to resist arrest.  These offences were committed on 10 December 2001.  This sentence of 10 years, again after pleas of guilty, was made consecutive, leaving Cheng Chao-liang to serve 20 years’ imprisonment in all.

21.Realistically, Mr Tolliday-Wright accepted that the sentencing of Cheng Chao-liang might well be regarded as having been lenient but as the prosecution had not sought a review of sentence it might, he suggested, be described as within the general range of sentence a judge might properly impose.

22.Jackson J, when dealing with the other two robbers named in counts 1 to 4 and having again adopted a 15-year starting point for each robbery, gave each of them a 7-year discount to reflect their pleas of guilty and their assistance in the case against Cheng Chao-liang who had pleaded guilty after they had each implicated him in statements they made as prosecution witnesses.  This brought their sentences down to four concurrent terms of 8 years’ imprisonment.  In addition, they each received a consecutive 4-year term of imprisonment for their involvement with Cheng Chao-liang in the other robbery committed on 10 December 2001, making 12 years’ imprisonment in all.

23.In all these circumstances, Mr Tolliday-Wright argued that the sentence imposed on the applicant was manifestly excessive and revealed a serious disparity with the sentences passed on the other offenders.

Discussion

24.Mr David Leung accepted that when sentencing the other robbers to wholly concurrent sentences for the series of four armed robberies, Jackson J had erred in principle by making all four sentences wholly concurrent.  To this extent, we would add, the recorder was perfectly entitled to take his own course, having correctly satisfied himself that the other robbers had received the benefit of an error made in sentencing approach by another judge on another occasion.  Two ‘wrongs’ do not make a ‘right’ and for the recorder to have sentenced on the same erroneous basis would have been inappropriate.

25.The questions which remain, therefore, are (1) whether the huge disparity between this applicant’s sentence in its overall effect compared to all the others involved in this series of offences is such as to give rise to a genuine grievance which is justified and (2) whether the 34½-year notional starting point of these five offences was manifestly excessive.

26.We consider that the best approach is to start with the second question we have posed as, if resolved in the applicant’s favour, it clearly has an impact on the first question.  The 15-year starting point for each robbery was not open to criticism but, whilst some consecutive element in sentencing was plainly appropriate, the totality reached by the recorder was, in our opinion, closer to the kind of sentence the applicant might be expected to have received if he had contested these charges than a sentence following pleas of guilty.

27.We shall, in this light, approach the sentencing exercise afresh.  Taking the same starting points as those adopted by the recorder, the sentences on each count will remain the same.  However, we consider that for the robberies in counts 2 and 3, the consecutive element of those sentences should be limited to 2 years’ imprisonment on each count.  With totality in mind, we consider that the consecutive element on count 4 should be 12 months.  We agree with the recorder’s view that a year of the sentence on the 5^th count should also be consecutive.  In all, this will leave the applicant with a term of 16 years’ imprisonment, which represents a reduction of 7 years to the sentence he is serving.

28.Dealing with the first question, disparity, we acknowledge that the adjustment of sentence we have considered to be appropriate will leave the applicant serving a sentence which is comparatively longer than the other culprits responsible for the robberies in counts 1 to 4.  However, any sense of grievance the applicant might have harboured has to be examined in the knowledge that there was an error in the sentencing approach taken by a different judge in the case of the other offenders on a much earlier occasion.  Although the applicant missed the opportunity of receiving the benefit of this by being absent from Hong Kong at the time the others were sentenced, it would not have been appropriate for the recorder to have imposed sentences on this applicant which followed the same erroneous path taken in the earlier proceedings.  It is now well-established that where different sentences are imposed for the same offence by different judges on separate occasions, the only relevant consideration is whether the sentence in question is a proper one.  As to that, as we have indicated, we are satisfied that the applicant’s sentence in overall effect was manifestly excessive.

Conclusion

29.Accordingly, we shall grant leave and, treating the hearing as the appeal, we shall quash the orders made by the recorder on counts 2, 3 and 4 that 6 years, 4 years and 2 years respectively of the 10-year sentences on those counts should run consecutively.  We substitute an order on counts 2 and 3 that 2 years of the 10-year sentences will run consecutively and, on count 4, 1 year of the sentence will run consecutively.  The 1-year consecutive element of the 3½-year sentence on count 5 will remain unaltered.

30.The appeal is allowed, therefore, to the extent that the total sentence is reduced by 7 years to 16 years’ imprisonment.

Mr David Leung, SPP, of the Department of Justice, for the Respondent.

Mr David Tolliday-Wright, instructed by Messrs Littlewoods, assigned by Director of Legal Aid, for the Applicant.