HKSAR v. Li Cheng Hong and Others

CACC202/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 202 OF 2008

(ON APPEAL FROM HCCC NO. 163 OF 2007)

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Before : Hon Stuart-Moore VP, Yuen JA and Saw J

Date of Hearing : 11 March 2009

Date of handing down Judgment: 30 April 2009

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J U D G M E N T

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Hon Saw J (giving the judgment of the court) :

1.The applicants seek leave to appeal sentences imposed by Beeson J in HCCC163/2007.  The 5^th applicant (D6) also seeks leave to appeal his conviction.  There were 7 accused named in the original indictment.  Wang Man Tao (“D4”) was the 4^th accused and has not applied for leave to appeal.  For the purposes of this judgment, we shall refer to each of the applicants by the number given to them on the indictment.

2.To fully appreciate the grounds of appeal, it is necessary to give some detail of the proceedings.  The original indictment contained 15 counts.  All of the counts arose out of the planning and execution of robberies which took place in the second half of 2006.

3.We are indebted to Ms Anthea Pang for the respondent for her helpful skeleton submissions and schedules which we will in part adopt when setting out the circumstances of the offences which resulted in the counts on the indictment.

Background

4.On 17 November 2006, police officers raided a flat at 473–475, Shun Ning Road, Cheung Sha Wan.  After a struggle, six males : D1 to D5 and another male, Zhang Yu Fei who was not involved in the trial, were arrested.  D5 tried to escape by climbing down the sewage pipe outside the kitchen window.  However, the pipe broke and he fell onto the canopy below.  He was detained and a number of knives were found close to where he landed. 

5.It was the prosecution’s case that this flat was not simply accommodation for these men but was in fact a safe-house so that they could prepare and arm themselves to commit robberies as and when required to do so by their Hong Kong organisers.  Other than D1 to D5 (who were all recruited from the Mainland), a number of Hong Kong people were also involved, including D6 and D7.

The robberies

6.The first robbery took place on 23 June 2006, at the Chung Wo Commercial Centre in Shanghai Street, Yaumatei.  A large quantity of jewellery was stolen.  Those involved were armed with knives.  The indictment alleged that D1, D3 and D6 together with other unarmed persons effected the robbery (count 1).  In the course of the robbery the two victims and a security guard who had come to their aid were injured and as a consequence the indictment charged D1 and D3 with offences of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212 (counts 2 to 4).

7.The second robbery took place on 19 July 2006 outside No. 33N Carnarvon Road, Tsimshatsui, Kowloon.  Again a significant quantity of jewellery was stolen and those involved were armed with knives.  D1, D3 and D4 were charged as having taken part in the robbery (count 5) with others unarmed.

8.In the course of this robbery, both victims were seriously injured and D1, D3 and D4 were charged with wounding, contrary to section 17 of the Offences against the Person Ordinance, Cap. 212 with respect to each victim (counts 6 and 7).

9.Count 8 was the third robbery.  D1 was the only accused charged albeit the offence was committed with other unarmed persons.  The robbery took place on 1 September 2006 outside 163–173 Portland Street, Kowloon.  A number of unarmed men attacked and robbed the victim of a substantial quantity of watches and watch parts.  The victim, a dealer in watches and watch parts, was in the process of moving his stock to an exhibition and sale of jewellery and watches at the Exhibition Centre.

Robbery/murder

10.Count 12 was the fourth robbery and this took place on 16 November 2006 at Hunghom KCR Station.  Lee Yick Lam was the victim and a very substantial quantity of jewellery was stolen.  D3 to D5 were charged with this robbery.

11.The victim died the following day from injuries he sustained in the course of the robbery.  D3 to D5 were charged with his murder (count 13).

Conspiracy to rob

12.Counts 9 to 11 were counts of conspiracy to commit robbery. 

13.D2 was charged with conspiring to commit robbery on or about 1 September 2006 (count 9).  D1 and D5 together with others were named as co-conspirators.  This was the robbery in Portland Street, Kowloon.

14.Count 10 alleged that on or about 23 October 2006, D7 conspired with others named (but none of these applicants) to commit robbery.  The other conspirators included two of those named in count 9.

15.Count 11 alleged that on or about 8 November 2006, D7 conspired with another (but none of these applicants) to commit robbery.  That person was also a named co-conspirator in count 10.

16.Count 14 charged D1 and D2 with conspiracy to commit robbery.  This was the robbery at the Hunghom KCR Station on 16 November 2006, which resulted in the death of Lee Yick Lam.

17.Count 15 charged D6 with possession of an offensive weapon in a public place, contrary to section 33(1) of the Public Order Ordinance, Cap. 245.  The date of the offence was 16 November 2006 and the offensive weapon was a triangular knife.

The robberies

18.The first robbery (count 1) took place on 23 June 2006.  On that day Lai Che Nam together with his sister Lai Siu Ling were in the lift lobby of the Chung Wo Commercial Building in Shanghai Street, Yaumatei.  They had with them a handcart which was loaded with a large quantity of jewellery which they were supposed to deliver to firms in Hong Kong.  As they entered the lift lobby, Lai Che Nam became aware of the presence of several males who had apparently followed them into the building.

19.He apprehended that they intended to rob them and attempted to alert the security guards.  As he did this, one of the males pulled the handcart containing the jewellery away from him.  A struggle ensued and in the course of which he was cut with a knife wielded by one of the robbers.  His sister was pushed to the floor and a knife was held to her throat.  Mr Choi Fu Cheung, a security guard who came to their assistance was also cut with a knife by one of the robbers.

20.Lai Che Nam received a deep laceration to his left index finger.  His sister received lacerations to her thumb.  Mr Choi, the security guard, received a deep laceration to his right wrist, right middle and ring fingers.  The consignment of jewellery taken by the robbers was valued in excess of $3,000,000.  None of it was recovered.

21.The second robbery (count 5) occurred on 19 July 2006 outside No. 33N Carnarvon Road, Tsimshatsui.  On that day Wong Ka Fai, a jewellery salesman together with a colleague Wong Ka Ho were in the process of delivering a consignment of jewellery valued in excess of $2,600,000 when they were attacked by three men with knives.  Wong Ka Fai was grabbed around the neck and was chopped.  As a consequence he fell to the ground and released his hold on the bag containing the jewellery.  As he lay on the ground he was chopped again.  Wong Ka Ho also received chop wounds to the right hand and forearm.  Wong Ka Fai required emergency surgery to repair deep lacerations to his left thigh, right leg and right arm.  He was hospitalized for over 2 months.  Wong Ka Ho was also admitted to hospital for surgical repair of the deep lacerations to his arm.  None of the jewellery stolen was recovered. 

22.The third robbery occurred on 1 September 2006 at Portland Street, Kowloon.  As we have earlier stated, a number of unarmed men attacked and robbed the victim of a substantial quantity of watches and watch parts.  D1 was the only person charged.  

23.The fourth robbery (count 12) occurred on 16 November 2006 at the Hunghom KCR Station in Kowloon.  On that day Lee Yick Lam, a clerk in a Hunghom jewellery company, went to the Hunghom KCR Station to collect a consignment of jewellery which had been shipped to Hong Kong from the Mainland.  At about 1:25 p.m. he picked up three boxes from the office of China Travel Services.  Shortly after this he was attacked by four men, two of whom were armed with a hammer and knife respectively.  The four men escaped with the boxes of jewellery valued at $463,472.  In the course of the robbery one of the men struck Lee Yick Lam on the head with the hammer causing him very serious head injuries.  He died the following day. 

The order of pleas and convictions

24.D1 pleaded guilty to two robbery counts (1 and 5), three section 19 wounding counts (2, 3 and 4) and two section 17 wounding counts (6 and 7).  Two counts were left on the court file, namely count 8 (the robbery on 1 September 2006) and count 14 (the conspiracy to rob with respect to the robbery on 17 November at the Hunghom KCR Station).  

25.D3 pleaded guilty to three robbery counts (1, 5 and 12), one section 17 wounding count (7) and guilty to manslaughter on the murder count (13).  This latter plea was endorsed by the court.  One section 17 wounding count was left on the file (count 6), as were the three section 19 wounding counts (2, 3 and 4).

26.D4 pleaded guilty to count 5 (robbery) but not guilty to counts 6, 7, 12 and 13.

27.D6 pleaded guilty to the count of possession of an offensive weapon (count 15) but not guilty to robbery (count 1).

28.D7 pleaded guilty to the only count he faced, conspiracy to rob (count 10).

29.D2, D4 and D5 objected to the admissibility of their cautioned statements and a voire dire was conducted.  After the statements had been ruled admissible, D4 pleaded guilty to counts 6, 7, 12 and guilty to manslaughter on the murder count (count 13).  As was the case with D3, his plea of guilty to manslaughter was endorsed by the judge.  D5 pleaded guilty to the robbery count (count 12) and offered to plead guilty to manslaughter on the murder count (count 13).  This offer was rejected by the prosecution.

30.Ultimately, by the time the jury was empanelled, three defendants (D2, D5 and D6) stood trial.  An amended indictment containing only five counts was filed.  At the conclusion of the trial, D2 was convicted of two counts of conspiracy to commit robbery (the original counts 9 and 14).  D5 was acquitted of the murder count (the original count 13) but was found guilty of manslaughter in the alternative.  D6 was convicted of robbery (the original count 1).

31.On 30 May 2008, after the trial of D2, D5 and D6 had concluded, Beeson J summarized the course of events which gave rise to the various charges.  She said :

“The defendants who appear in court this morning were involved in three robbery cases which occurred between 23 June 2006 and 16 November 2006.  They were charged with the robbery offences and/or related charges of wounding — section 17 and 19, conspiracy to rob and, initially, a murder charge was laid although that charge was eventually reduced to manslaughter.

Defendants 1, 3, 4 and 7 pleaded guilty to the charges they faced prior to the trial and the trial proceeded with three defendants, D2, D5 and D6. 

…

The robberies were serious offences resulting from a lot of planning and followed a similar pattern.  The targets in each case appeared to be jewellery manufacturers or dealers who were sending goods to and from China.  The exception was the victim of Charge 8 who was a dealer in Hong Kong in high calibre second-hand watches.  It appears that for each robbery, the organisers were probably privy to inside knowledge of deliveries of valuable consignments, possibly through the delivery companies.  In the case of the victim of Charge 8, his movements were probably scrutinised as the robbery was effected on the day he was moving his watch stock from his business premises to an exhibition and sale of jewellery and watches at the Exhibition Centre. 

It appears that a date would be chosen to coincide with the arrival of a valuable consignment and the organisers would then recruit personnel from the Mainland to come to Hong Kong either using legitimate travel documents or by sneaking in, whichever was considered expedient.  On arrival, those men who were hired would be met or collected and then housed in a hotel or flat until called upon to act.  It does not appear that they were required to bring weapons with them. 

Dates, times, venue and participants would be notified close to the time of the robbery.  There was little group discussion about the individual robberies — Mainland participants would be told of the general plan, but not given specific details until the actual day chosen.  In some instances the robbery would be cancelled only a short time before it was scheduled.

Whilst in the care of the Hong Kong organisers, those hired were supplied with food, clothing and shelter.  Payment was promised at a generous rate, although the rate for each participant is not clear from the evidence.  The 2^nd defendant was recorded as saying that he was promised 1 million if the robbery he took part in succeeded, but there were no firm figures from the evidence.  It appears that if those recruited did not take part in a particular robbery, they would still be paid half the promised fee if the robbery was successful. 

Not all the robberies proposed or planned came to fruition.  Sometimes recruits were sent back to China after a few days without any robbery having been carried out. 

In each robbery the robbers displayed or used weapons which were supplied to them by the organisers.  The weapons were usually knives — beef or bread knives — although a hammer was provided for the 5th defendant in the robbery on 16 November 2006.  However, in the robbery of 1 September 2006, no weapons were seen or displayed; the robbers relied on fists and feet to attack the victim.

The robbery on the 1st charge had aggravating features being the number of participants, the planning, the targeting of the victim, the display and active use of weapons.  All three victims were injured.  The male security guard and the male proprietor of the business received injuries which, even now, show scarring and cause them problems such as stiff movement.  The sister of the proprietor was also attacked and what she believed to be a knife — and, in all likelihood, was — was held to her neck.  She received cut injuries on the palms of her hands.  None of the stolen property was recovered.  That was a loss of about $3 million.

In the 5th charge, the aggravating features were the planning and targeting involved.  The three perpetrators attacked in the street and snatched jewellery from the two male victims.  The two male victims were very badly injured with the knives which were displayed by the robbers and used to chop them.  Wong Ka-fai suffered serious lacerations on his left thigh, his right leg and his right arm.  He required an emergency operation to repair cut nerves and tendons and was hospitalised from 19 July 2006 to 29 September 2006. 

Wong Ka-ho suffered three deep chop wounds to his upper right arm, 18 centimetres, 10 centimetres and 8 centimetres in size.  Muscles and tendons as well as the radial nerve all required treatment and he was discharged after two days in hospital.  Jewellery worth $2.6 million was not recovered.

The robbery, Charge 12, on 16 November was committed at the concourse of the Hung Hom Railway Station by four men.  Some of the robbers displayed knives but did not otherwise use them, however, the male victim was hit on the head with a hammer and died subsequently from head injuries.  Some of the stolen property was later recovered. 

Although the robberies were separate and distinct, they formed a series of planned and orchestrated events over a period of months which had as their goal the obtaining of very large sums of money. 

Most of the planning and directing appears to have been carried out by a group referred to by common nicknames who are not before the court necessarily.  The robberies were effected by what might be termed ‘foot-soldiers’ brought in from the Mainland as required.

Prior to the robbery, some checking of the proposed venue would be carried out.  For example, PW3 in the robbery of 23 June 2007 described having seen two men prowling around his office premises a few days before he was robbed in the lobby of his building. 

In some instances, the checks resulted in the robbery being cancelled.  In those cases, the men brought from the Mainland would be told to go back. 

Each robbery took the form of a sophisticated snatching by a group of three to four men operating in unison on telephone instructions, as occurred in Charge 12.  Each was carried out at ground level or in the street on open ground, thus enabling the robbers to make a quick escape as, for example, Charges 1, 5, 8 and 12.  Escape was effected either on public transport as in the robbery, Charge 8, or by prearranged vehicle or vehicles as for the robbery of 16 November. 

In the robberies, the subject of Charges 1, 5 and 12, weapons were displayed.  In Charges 1 and 5, they were used.  These were beef knives or what was referred to as bread knives provided by the organisers before the robberies.  Two knives were purchased by the 6th defendant the day before the robbery of 23 June 2006.  A similar knife and sheath was found later at the scene and, on 17 November, at least one similar knife was recovered after D5 had thrown it from the window at the time of the police raid. 

In his Record of Interview, the 2nd defendant said he had seen two knives of that type in the safe house.  A total of five knives were recovered during the raid.  They were thrown from the window by the 5th defendant just before he tried to escape down the drainpipe.  The hammer used by D5 to hit and kill the victim during the robbery of 16 November was recovered by the police on 18 November after D3 told police where it might be found. 

In all the robberies, the robbers either carried weapons themselves or were backed up by other robbers with weapons.  All the robbers involved knew the weapons could and would be used and where they were used.  It appears that no quarter was given. 

Any resistance such as occurred in the robberies of 23 June and 19 July, was met with severe retribution, resulting in permanent damage to those victims.  There were five wounding charges resulting from the robberies from the robberies of 23 June and 19 June, together with the murder charge which arose from the robbery of 17 November.  It is a clear indication that force in excess of what was required was being used for the robberies.  No weapons were seen nor, apparently, displayed for the robbery on 1 September.”

32.The judge was at pains to set out factors which were relevant to her starting points for sentence.  She said :

“Before I announce sentence, I propose to just go briefly through the considerations I had in fixing starting-points.  In setting the starting-points for the robberies, I took into account the serious nature of the robberies; the degree of planning; the amount and value of the goods targeted; that the robberies were effectively a series; that a group of robbers was involved on each occasion; that weapons were carried and displayed or used; that the participants were aware of weapons being part of the plan; and that the robbers were oblivious to the dangers of carrying weapon. 

Further, the robberies were accomplished with cross-border planning and the recruitment of personnel which would have the effect of making and was no doubt intended to make detection of the perpetrators difficult.  It would also simplify the disposal of goods and money obtained in the robberies. 

I took into account that the robberies in Charges 1 and 5 were accompanied by separate but related wounding charges and that Charge 12 was accompanied effectively by a manslaughter charge.  That led to an element of overlap which meant that the starting-points for the robberies would be too high if set at 12 years. 

The starting-points for the conspiracies to rob were set at the same level as the robberies, in terms of section 159 of the Crimes Ordinance with suitable adjustments for individual defendants.

I made no significant distinction amongst the defendants in terms of culpability as the evidence did not reveal clearly who amongst them, if anyone, was an organiser and who was hired help.  It does appear, however, that the defendants recruited from China were not organisers but were brought in as ‘muscle’ and that those who were responsible for the major organisation and planning were not before the court.  Although the evidence showed that D6, a Hong Kong resident, supplied knives for the robbery the subject of Charge 1, there was nothing other than that to show that he was involved more deeply in organising the robbery. 

I took account as major mitigation, any pleas of guilty and gave the usual one-third discount where the plea had been entered promptly and before the trial.  Where the pleas were advised only after the voir dire had concluded, I gave a lesser discount of 20 per cent.  Any other mitigatory matters were considered and given what weight was proper according to the individual submissions on behalf of each defendant.”

33.For each of the applicants the judge adopted starting points of 10 years’ imprisonment for the robbery counts, save that in the case of D6, she adopted a starting point of 12 years (because there was no separate wounding count).

34.For the wounding counts in the first robbery, she took a starting point of 4 years; and for the wounding counts in the second robbery, she took a starting point of 6 years.  

35.The sentences were discounted by one third to allow for pleas of guilty save for those pleas tendered after the voire dire where a discount of 20% was given.

The sentences

D1 (Li Cheng Hong) : sentenced in total to 14 years and 8 months’ imprisonment

36.The judge said this :

“In respect of the 1st defendant I noted particularly that he pleaded guilty to a significant number of charges at an early stage of proceedings and consider that he is entitled to the full discount for those pleas.  I noted that he was not one of the organisers and that he received comparatively modest payment for his services given the value of the targeted jewellery. 

On Charge 1, I took a starting-point of 10 years and discounted it by one-third.  It became 6 years 8 months.  On Charges 2, 3 and 4, I took a starting-point of 3 years and imposed a sentence of 2 years on each of Charges 2, 3 and 4.  I order that the sentence on 2, 3 and 4 be concurrent and that 2 years should run consecutively to Charge 1, 8 years and 8 months. 

For the robbery on Charge 5, I also took a starting-point of 10 years and discounted it to 6 years and 8 months.  On Charges 6 and 7, I took a starting-point of 6 years, discounted it to 4 years for each made them concurrent with each other and ordered that 4 years of the sentence on charges 6 and 7 run consecutively to the sentence on Charge 5; making 10 years and 8 months.  Four years of the total sentence on Charges 1, 2, 3 and 4 are ordered to be consecutive to the total sentences on Charges 5, 6 and 7, this makes a total sentence of 14 years and 8 months for the 1st defendant.”

D2 (Cui Yun Hua) : sentenced in total to 12 years’ imprisonment

37.D2 was convicted after trial of two counts of conspiracy to rob (counts 9 and 14).  The robberies were those which took place on 1 September 2006 at Portland Street in Kowloon and on 16 November 2007 at the Hunghom KCR Station.  

38.D2 was arrested in the Shun Ning flat together with the other defendants and his left thumb print was found on the sheath (with a knife inside) which was recovered from the canopy where the police found D5 after he fell trying to flee.  When interviewed by the police he admitted that he had been recruited from the Mainland to commit robberies in Hong Kong.  There were two occasions (1 September and 16 November 2006) when he came to Hong Kong and was ready and willing to participate with others in the robberies (counts 9 and 14).  He was, however, not called upon, apparently because there were already sufficient numbers to commit those robberies.

39.The judge accepted that D2 was not an organizer or ringleader but was recruited to be a member of the robbery gang.  It was said on his behalf that it was a mitigating factor that he did not actually take part in the two robberies he had helped plan. 

40.The judge took a starting point for sentence for each of the conspiracy counts of 12 years and imposed that sentence on each.  She then ordered that those sentences be served concurrently. 

D3 (Lin Hui) : sentenced in total to 16 years’ imprisonment

41.The judge said this :

“The 3^rd defendant pleaded guilty on 8 January 2008 the first day of the trial to three charges of robbery — Charges 1, 5 and 12; one charge of wounding, Section 17 — Charge 7; and one charge of manslaughter — Charge 13.  Those pleas had been indicated to the court by the date of the second pre-trial review on 21 December 2007.  Four wounding charges — Charges 2, 3, 4 and 6 — were left on file, not to be proceeded with without the leave of the court or the Court of Appeal.

Charge 13 was originally one of murder, but the prosecution, with the leave of the court accepted a plea to manslaughter on the basis that the killing occurred in the course of a joint enterprise where the degree of violence used went beyond what had been contemplated by the defendant.”

42.It was D3 who wielded one of the knives in the robbery on 23 June 2006 and again on 19 July 2006.  It was in this latter robbery that the victims were very seriously injured.

43.When sentencing the judge said this :

“The court was asked to give credit for the defendant's clear record.  While it is correct that he has no record in Hong Kong, that is not surprising because he has been resident until now in China and there is, of course, no way of establishing reliably, whether he has a clear record in China.  Moreover, these are serious offences and the courts have made clear on many occasions that a clear record counts for little or nothing given the magnitude of offences such as these.

In respect of Charge 1, I take a starting-point of 10 years and discount it to 6 years and 8 months.  Similarly, with Charge 5, I take a starting-point of 10 years and discount it to 6 years and 8 months.  On the wounding — section 17 — which is Charge 7, I take a starting-point of 6 years and reduce that to 4 years.  On Charge 12, the starting-point is 10 years, reduced to 6 years and 8 months for the plea.  For the manslaughter, I take a starting-point of 15 years and reduce it to 10 years.  The sentences on Charges 1, 5, 7 and 12 are ordered to be concurrent and 6 years of the total sentence on those charges is to be consecutive to the sentence on Charge 13 making a total of 16 years.”

D5 (Liu Qiang) : sentenced in total to 18 years’ imprisonment

44.D5 was charged with one count of robbery (count 12) and one count of murder (count 13).  Initially he pleaded not guilty to both counts however as the judge noted :

“After the voir dire ruling …, the defendant pleaded guilty to the robbery charge, Charge 12, and maintained his plea of not guilty to the murder charge.  At that stage, he offered a plea to manslaughter which was not accepted by the prosecution.  The trial proceeded, this defendant being D2 at trial, and at its conclusion the jury, by a majority of 5-2 found him not guilty of murder, but guilty of manslaughter.”

45.When sentencing the judge said :

“… It was submitted that credit should be given for offering the plea to manslaughter, despite the plea not being accepted. 

However, I note that when the plea was offered, it was clear that the defendant had been prepared to plead only to a heavily abridged and bowdlerised version of the facts which, in the context of the evidence that emerged at trial and in light of his admissions, bore no resemblance to the events of 16 November.  It would have been improper for the prosecution to have accepted the plea on the basis on which it was originally offered. 

In respect of the 12th charge, the robbery to which the defendant pleaded guilty after the voir dire, I took a starting-point of 10 years and reduced it by 20 per cent to 8 years.  In respect of the manslaughter charge, I took the sentence properly to be 18 years’ imprisonment and I order that both those sentences run concurrently, a total of 18 years.”

D6 (Chan Hok Fung) : sentenced in total to 12 years’ imprisonment

46.D6 faced two counts — count 1 robbery and count 15 possession of an offensive weapon.  On 18 January 2008, the first day of the trial, he pleaded guilty to count 15 and the trial proceeded on the robbery count.  This concluded on 13 March 2008 when the jury found him guilty.

47.The facts relating to count 15 showed that he was intercepted in Kwai Fong on 18 November 2006.  A body search revealed keys to his light goods vehicle which was parked in the vicinity.  Behind the sun visor above the driver's seat, police found a triangular knife, 8 centimetres in length, which could be fitted onto the knuckles.  The knife was in a sheath. 

48.In relation to the robbery count, the evidence against D6 was that he had purchased two knives before the robbery on 23 June.  His fingerprint was found on a newspaper retrieved from the scene of the robbery.  He had been present in Hong Kong on the day of the robbery and had admitted taking the knives and delivering them to the others. 

49.In respect of the robbery count, the judge took a starting point of 12 years and, given that he was convicted after trial, that was the sentence she imposed.  In respect of the possession of an offensive weapon count, the judge took a starting point of 9 months, reduced it to 6 months for the plea and ordered that it run concurrently with the sentence on count 1. 

D7 (Ng Chun Wai) : sentenced to 8 years’ imprisonment

50.D7 pleaded guilty to count 10, a conspiracy to rob, and not guilty to count 11 also a conspiracy to rob. 

51.His intention to plead guilty was made known to the judge before the trial started.

52.The facts relevant to count 10 were that on 23 October 2006, officers of the Criminal Intelligence Bureau saw two Chinese males board a light goods vehicle parked in Oak Street, Tai Kwok Tsui, Kowloon.  A few minutes later, D7 appeared and drove the vehicle (with the males on board) to Hoi Ting Road, Tai Kwok Tsui.  There, the two males alighted and one of them threw a wad of newspapers into a rubbish bin on the roadside.  The two then boarded a taxi and left.  D7 then changed the number plates on the vehicle and drove away.  The wad of newspapers was recovered by the police.  A 30-centimetre long hammer and a 45-centimetre long beef knife were wrapped inside.

53.After his arrest, D7 admitted that he rented the vehicle on 22 October 2006 as he had been informed by “Ah Wah” that a robbery would be committed.  “Ah Wah” also instructed him to get false number plates and he did so.  On 23 October 2006, “Ah Wah” told him that two male mainlanders would board his vehicle.  However, after a while, he was told that the robbery was cancelled and he was asked to take the two men away.  He saw one of them discard something wrapped in newspapers in a litter bin after they left his vehicle.  He said he did not know the details of the robbery plot although he had been promised $50,000 if it was successful.

54.Count 11 was not proceeded with and left on the court file.

55.In respect of the conspiracy to rob in count 10, the judge took a starting point of 12 years.  The judge discounted that by one third for D7’s guilty plea.  The sentence imposed was 8 years’ imprisonment. 

D4 (Wang Man Tao) : sentenced in total to16 years’ imprisonment

56.Whilst D4 has not sought leave to appeal his sentence, we include the particulars for the sake of completeness.  D4 was charged with robbery (count 5); two counts of section 17 wounding (counts 6 and 7); robbery (count 12) and murder (count 13).  At the outset of the trial, he pleaded guilty to count 5.  On 28 January 2008, after the voire dire, he pleaded guilty to counts 6, 7 and 12.  He pleaded not guilty to the murder (count 13) but guilty to manslaughter.

57.In respect of count 5, the judge took a starting point of 10 years’ imprisonment, discounted this by one third, and sentenced him to 6 years and 8 months’ imprisonment.  On counts 6 and 7, the judge took a starting point of 6 years and, on each, gave a discount of 20% which resulted in sentences of 4 years and 10 months.  On count 12, the judge took a starting point of 10 years and, giving a discount of 20%, sentenced him to 8 years’ imprisonment.  For count 13, the judge took a starting point of 15 years’ imprisonment, discounted it by 20% and passed a sentence of 12 years.  The sentences on counts 5, 6, 7 and 12 were ordered to run concurrently one to the other and 4 years of that total sentence was ordered to be served consecutively to the sentence on count 13 making a total of 16 years’ imprisonment.

The applications

Conviction

58.D6 has applied for leave to appeal his conviction on count 1 and the sentence of 12 years’ imprisonment.  He was unrepresented and applied to have more time to arrange for representation.  We refused that request advising him that he had been earlier warned that he should be in a position to proceed with his application if an adjournment was refused.  The prosecution’s case we have described in paragraph 48 above.  Whilst the evidence against him was circumstantial nevertheless it was more than sufficient to establish his guilt.  There is no merit in his application for leave to appeal his conviction and it is dismissed.

Sentence

D1

59.The substance of the complaints made by Mr Donald on behalf of the 1^st applicant (D1) is that :

(i)    the starting point for sentence in the case of each charge is too high; and

(ii)  the total sentence of 14 years and 8 months is manifestly excessive.

60.It was Mr Donald’s submission that the total term of imprisonment to be served by his client is manifestly excessive when compared with the sentences imposed on his co-accused for similar and in part more serious degrees of criminality.

61.In support of his complaints, he submitted that the course adopted by the judge of ordering that the sentences for the wounding charges be concurrent to the robbery charges (as she did in the case of the 3^rd and 4^th applicants) was to be preferred.  Had she done this in the case of D1,he submitted that the overall sentence would then have been a proper one.  Integral to this submission was the premise that the starting point of 10 years’ imprisonment for the robbery counts accommodated an allowance for the use of violence in excess of that necessary to effect the robberies.

62.Mr Donald’s submission that the correct starting point for sentence for these robberies with their attendant planning and violence should be 10 years was unrealistic.  Had there not been the wounding counts starting points in excess of 10 years were justified as the judge said.  This being said, the judge ought not, with respect, to have rounded down the sentences for robbery.  If a 12-year starting point was justified, as the judge indicated elsewhere in the Reasons for Sentence, this is the starting point which ought to have been adopted to avoid passing an artificially low sentence.

63.The violence used in the case of the two robbery counts which involved this applicant was substantially in excess of any required to effect the robbery itself.  In the case of the 2^nd robbery which resulted in the section 17 wounding counts the injuries inflicted were very serious, if not life-threatening.  

64.Mr Donald referred us to the facts in HKSAR v. Lai Kam Tong and another [2005] 1 HKC 232 where the Court of Appeal was concerned with sentences imposed for two separate “head-bashing” robberies in which starting points of 10 years and 11 years were adopted.

65.What is immediately apparent from the facts of that case is :

(i)    the injuries sustained by the victims were relatively minor; and

(ii)  there were no separate wounding charges.

We fail to see the relevance of the comparison he makes.

66.Of the starting points adopted for sentence on the wounding charges, Mr Donald submitted that these were excessive but did not support his submission with arguments of any substance.

67.Mr Donald’s submission was that in the case of D1, all of the wounding counts should have been ordered to be served concurrently one to the other and to the robbery counts.

68.We do not agree.  It is to be noted that in the case of D3 and D4, they were both involved in the robbery of 16 November 2004 which resulted in the death of one of the victims.  They were both convicted of manslaughter. 

69.They were both sentenced to terms of 16 years’ imprisonment and in coming to that totality, the judge ordered that the wounding charges relating to the earlier robberies should be served concurrently to the terms for the robbery counts.  This was no more than the course by which the judge arrived at what she considered to be the appropriate total sentence.  Her approach can give no cause for complaint on the part of this applicant as the sentences ultimately imposed on him were in no sense manifestly excessive.

70.As to the approach taken by the judge we consider that it was appropriate in the circumstances.  Whilst it may have been simpler to adjust the starting point for sentence for the robbery counts upwards to reflect the excessive violence used, ultimately we must consider whether the totality of the sentences imposed requires our intervention. 

71.We cannot see how it can be properly said that the total sentence imposed on this applicant is manifestly excessive.  The descriptions given by the judge of the planning and execution of these robberies speaks for itself.  They were very serious offences which demanded the imposition of severe penalties.

72.There is no merit in the application.

D2

73.D2 was unrepresented in his application for leave to appeal sentence.  He was charged with counts 9 and 14.  These were conspiracies to commit robbery.  He pleaded not guilty and was convicted of both after trial.  He was sentenced in each case to be imprisoned for 12 years.  The sentences were ordered to be concurrent one to the other. 

74.His complaint was that his sentence was excessive.  In a letter to the court he asked for an opportunity to start a new life and rejoin society.  He emphasised that he played a minor role.

75.When sentencing this applicant, the judge noted that the conspiracies were with reference to a proposed robbery in early September 2006 and the 16 November 2006 robbery at Hunghom KCR Station.  The judge accepted that this applicant was not a ringleader nor an organiser but nevertheless, as she observed, “had been prepared to come to Hong Kong on a number of occasions knowing robberies were planned and it was a matter of chance whether the organisers needed his services on any day or for any particular task.”

76.When indicating the starting point for sentence for the conspiracy to rob counts, the judge said that these should be set at the same level as for the robbery itself with suitable adjustments for the roles of each defendant.

77.She determined that each of the four robberies standing alone warranted a starting point of 12 years.  As we have indicated, this was artificially adjusted downwards to 10 years in the case of those defendants charged in addition to the robbery counts with wounding and/or manslaughter with the result that artificially low sentences were imposed for the robbery offences committed by those defendants.

78.In the case of this applicant (D2), she saw no reason to adjust that starting point.

79.We see no reason to interfere with that decision.  The judge, in the course of her sentencing the applicants, had emphasised the seriousness of the robberies and the significant aggravating features in the case of each.  A 12-year starting point for these robberies was not manifestly excessive and the same starting point for a conspiracy to commit each robbery cannot be criticised.  The judge could properly have ordered that part of the sentence on one count should be served consecutively to the sentence on the other.

80.There was no merit in D2’s application.

D3

81.On behalf of D3, Mr McGowan complained that the starting point for sentence for the manslaughter count was too high.  We do not agree.  A starting point of 15 years was entirely proper.  This applicant and the other members of the gang, all of them armed, set upon their defenceless victim.  This applicant was aware that his co-accused were armed.  He was himself armed with a knife and knew that “one of his co-accused would strike the delivery man with a hammer”.  This was a very serious case of manslaughter.

82.It is said on his behalf that the judge failed to acknowledge the assistance provided to the authorities by helping them to locate the hammer which had been used in the Hunghom KCR Station robbery.  To suggest that a further reduction in sentence is warranted because he helped find the weapon used to kill one of the victims is not a submission which found favour with us.  It is not uncommon for an accused to identify, locate or describe exhibits in the course of a police investigation.  There may be times when this type of assistance has a significant bearing on the investigation and credit should be given where appropriate, but to suggest that it was incumbent upon the judge to give a specific, identifiable discount for doing this in the instant case was unrealistic.

83.The applicant was convicted on his own plea of participating in three violent robberies as a member of an armed and well-organised gang.  In the course of all of these robberies, people were injured, some seriously, and one died. 

84.Mr McGowan suggested that the sentences passed represent a combined starting point of 24 years.  We agree — and would observe that given the fact that many of these offences were separate and discrete this notional overall starting point could properly be said to have been on the low side.

D5

85.On behalf of D5, Mr Percy’s main complaint was that the judge’s starting point for sentence on the manslaughter count was manifestly excessive given that for D3 and D4 she had adopted a starting point for sentence of 15 years.  He accepted that an adjustment to reflect the fact that it was D5 who struck the fatal blows was appropriate.  His submission is that the upward adjustment to a starting point of 18 years was excessive.  The judge adopted a starting point of 10 years for the robbery charge because the manslaughter conviction in part overlapped with the violence attendant upon the robbery.  She gave a reduced discount because that plea of guilty came only after her ruling in the voire dire.  She sentenced D5 to 8 years for that count, a discount of 20%.  No issue is taken by Mr Percy on his behalf in this regard.

86.Mr Percy pointed out the many similarities between this applicant and the others charged with these two offences.  Mr Percy submitted that each accused should be punished in a like manner if all other things were equal.  He submitted that the judge gave no reason for the 18-year starting point that she adopted for this applicant and that it was not justified.  We agree.  We consider that a starting point for sentence for D5 on the manslaughter count should have been 16 years given that it was he who struck the fatal blows.  

87.The main issue in regard to D5 was whether or not the judge was correct in giving no discount from the starting point for sentence for D5’s offer to plead guilty to manslaughter.  Mr Percy emphasised that notwithstanding that the prosecution refused to accept his offer to plead guilty to manslaughter, he did not resile from that offer.  He did not, he submitted, attempt to avoid responsibility for his acts and admitted in the course of the trial that he was guilty of manslaughter, a position which the jury ultimately accepted.

88.We consider that some discount was in the circumstances justified, notwithstanding the observations of the judge that the basis upon which his earlier offer to plead guilty would have rendered the acceptance of such a plea improper.  Mr Percy sensibly accepted that a 20% discount would have been appropriate.  That being the case, the sentence for D5, after applying a 20% discount from a starting point of 16 years, results in a sentence of 12 years 9 months.  The application for leave to appeal is allowed and treating the application as the appeal, we reduce the sentence on count 13 from 18 years to 12 years and 9 months.  We also agree with the submission that the sentence of this applicant should not be in excess of that of D3 and D4 who in addition to the robbery/manslaughter counts pleaded guilty to other serious offences.  In the end result the total sentence for D5 should be 16 years.  To give effect to this, we will order that 3 years and 3 months of the sentence on count 12 be consecutive to the substituted sentence on count 13.

D6

89.D6 was convicted on count 1 and he complained in his application for leave to appeal sentence that the starting point for sentence adopted by the judge was too high.  There is no substance in this complaint.  The judge quite correctly, in our view, assessed the overall gravity of the robbery that this applicant was convicted of warranted a sentence of 12 years’ imprisonment.  In the case of his co-accused, the judge (erroneously) adopted a lower starting point because they faced additional wounding counts.  There is no justifiable cause for complaint.

D7

90.D7 pleaded guilty to the conspiracy to commit robbery in count 10.  The judge adopting a starting point for sentence of 12 years’ imprisonment which she reduced to 8 years for his plea of guilty.

91.On behalf of this applicant, Mr Leung submitted that the evidence before the judge did not entitle her to conclude that the intended robbery in which he agreed to take part would have been of the nature and seriousness of those in which his co-accused had engaged.  Mr Leung emphasised that the applicant was not involved in any of the other robberies.  

92.Mr Leung pointed out that the judge took into account the nature and circumstances of the actual robberies when fixing the starting points for the other conspiracy counts his co-accused faced.  No issue was taken with this approach when the conspiracy charges related to actual robberies which had taken place.  Mr Leung accepted that in such a situation, no valid criticism could be made.  

93.However, Mr Leung submited that where there had been no robbery and there was no evidence that what D7 had agreed to was of the gravity of other robberies on the indictment committed by his co-accused, a lower starting point was justified.  He submitted, in other words, that the proper course was to look at the degree of criminality of the proposed robbery and not that of robberies committed by others when he was not involved.  We agree.  The nature and circumstances of the conspiracy to rob which was reflected in the facts admitted by D7 properly justified, in our view, a starting point of 10 years.  Allowing for a discount of one third for his plea of guilty, the proper sentence should be one of 6 years and 8 months’ imprisonment.  We shall give leave in D7’s case, treating the application for leave to appeal as the appeal, we substitute for the sentence of 8 years’ imprisonment a sentence of 6 years and 8 months.  To this extent, the appeal in his case is allowed.

94.The applications for leave to appeal of the 1^st applicant (D1), the 2^nd applicant (D2), the 3^rd applicant (D3) and the 5^th applicant (D6) are dismissed.

Ms Anthea Pang, SADPP of Department of Justice, for the Respondent

Mr Richard D. Donald, instructed by Messrs LCP,  assigned by the Director of Legal Aid, for the 1^st Applicant (D1)

Mr James H.M. McGowan, instructed by Messrs Samuel Ho & Co., assigned by the Director of Legal Aid, for the 3^rd Applicant (D3)

Mr Duncan C.H. Percy, instructed by Messrs Lo, Wong & Tsui,  assigned by the Director of Legal Aid, for the 4^th Applicant (D5)

Mr Herbert Leung, instructed by Hong Kong Bar Association’s Free Legal Service Scheme, for the 6^th Applicant (D7)

The 2^nd Applicant (D2), in person

The 5^th Applicant (D6), in person