Attorney General v. Chan Lee Kong

CAAR000001/1986

BETWEEN

Coram: Hon. Li, V. -P., Kempster, J. A. & Power, J

Date of Hearing: 23 May 1986

Date of Judgment: 23 May 1986

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JUDGMENT

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Li, V. -P. :

1. The Respondent was found guilty, by a jury after trial and convicted on one count of robbery, one count of wounding with intent and one count of using a firearm with intent to resist lawful arrest.  For these he was sentenced by Deputy High Court Judge Ryan respectively to 14 years, 14 years and 12 years imprisonment to run concurrently.

2. Pursuant to leave granted the Attorney applies for a review of the sentences on the ground that they are wrong in principle and manifestly inadequate.

3. The Respondent was one of a group of persons who went in a car to rob the Chow Tai Fook Goldsmith Shop on the 13th March 1985 at about 10:30 a.m. Four of them, two with handguns and two with bags, rushed in and took away a large quantity of gold ornaments. A police constable went to investigate. He was at once shot at and badly wounded in an exchange of fire. At the same time two plain clothes policemen in a shop opposite joined in to arrest the robbers who were then fleeing in a get away car. In the event one of the robbers was fatally wounded. The Respondent was subsequently arrested. There was sufficient evidence to indicate that he was one of the gang of robbers who carried out the robbery, wounded the police constable and used firearms to resist arrest.

4. Counsel for the Attorney contended that having regard to the circumstances and nature of the offences a total sentence of 14 years' imprisonment was manifestly inadequate. He further argued that the sentences, or one of them, should be consecutive. Counsel for the Respondent, on the other hand, directed our attention to cases where sentences for armed robbery could be as low as 9 years. The Attorney General v Man Yui To ⁽¹⁾.

5. A fair number of authorities has been cited by both parties. No useful purpose would be served by referring to them one by one. Suffice it to say that Cons J. A., as he then was, mentioned the cases of Tso Wo Ping v R ⁽²⁾, R. v Chan Chau-sang & others ⁽³⁾ - both being cases of attempted armed robbery - and observed that this Court would not disturb a sentence of 14 to 15 years for such offence.  The case of Man Yui To ⁽¹⁾ was decided on special circumstances.

6. On the facts of the present case we are of the opinion that none of the separate sentences, each standing on its own, is a day too long: Ng Wai Ming and others v The Queen ⁽⁴⁾. In Tse Wo Ping v The Queen ⁽²⁾ this Court having referred to the provisions in Subsection l of Section 31 of the Arms & Ammunitions Ordinance said: -

"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.

7. We thus have to consider the totality of the sentences. In the case of R v French ⁽⁵⁾ Lord Lane C. J. said (p. 5)

"It is very important that this matter of sentencing practice should be appreciated at a time when every possible course must be taken by the courts to persuade people not to carry firearms. Therefore in this case where the second sentence of three years was made consecutive and was one relating to the carrying of a firearm, this Court would wish to stress that that was a perfectly proper approach to the problem, and one which should be followed. However, at the end of the day, as one always must, one looks at the totality and asks whether it was too much."

In our opinion the Respondent in this case merits an overall sentence of 20 years. However, it is usual to give an allowance in the case of a review.

8. For the aforesaid reasons the application is granted and the sentences are reviewed.   We will order that all the sentences are to stand but that four years of the sentence in respect of the count relating to use of firearms shall be consecutive. The balance of eight years will run concurrently with the two sentences of fourteen years. That makes an overall sentence of 18 years.

(1)    Application for Review No. 6 of 1984

(2)    1981 C. A. 623

(3)    1982 C. A. 760

(4)    C. A. No. 400/1979

(5)    [1982] 75 CAR 1

Representation:

Mr. B. M. Ryan (Crown) for applicant

Mr. E. Laskey (D. L. A.) for Respondent