Hksarr v. Pau Lai Sing

CACC 282/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 282 OF 2009

(ON APPEAL FROM HCCC NO. 79 OF 2009)

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BETWEEN

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Before: Hon Yeung JA and McMahon J

Date of Hearing:  14 April 2010

Date of Judgment: 14 April 2010

Date of Handing Down Reasons for Judgment: 19 April 2010

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.On 26 July 1997, the applicant, Pau Lai-sing, masked with a balaclava, burst into the Chow Sang Sang Jewellery Shop in a busy Tsuen Wan street and declared robbery. The applicant was also wearing gloves on both hands, with a pistol like object in the right and a hammer in the left, and a traveller’s bag across his shoulder.

2.Staff members and customers were scared and ducked for refuge. Some of them rushed out of the shop. The applicant then smashed the glass top of the showcase with the hammer and grabbed expensive watches to place into his traveler’s bag. The applicant left the hammer in the shop before fleeing and then dropped the balaclava near the entrance of the shop and a glove in a nearby alley.

3.Before the applicant escaped, police arrived in response to the alarm activated by a staff member. A police sergeant fired at the applicant, but he managed to make good his escape unharmed. The shop lost 21 watches with a total value of $594,600.

4.The applicant was apprehended on 12 September 2008, over 10 years after the event. DNA evidence linked him to the robbery.

5.Prior to the offence, the applicant did not have any criminal record. He was convicted of possession of an offensive weapon, possession of a dangerous drug and robbery in 1999, 2001 and 2002 respectively.

6.On 18 August 2009, the applicant pleaded guilty to robbery before Deputy Judge Mackintosh (as he then was) in the High Court, but denied the allegation that he had pointed a pistol-like object at the sergeant.

7.The judge had a Newton Inquiry and found that he did. The judge accepted the sergeant’s evidence that when the applicant was fleeing, he turned and briefly pointed the pistol at him. The sergeant then drew his revolver and shouted at the applicant to stop. As the applicant was running and the sergeant chasing, the applicant turned and pointed the pistol again at the sergeant in a more determined manner. The sergeant found it necessary to fire once at the applicant.

8.The judge further pointed out the aggravating features of the case, namely that the applicant used violence by smashing his way into the shop and brandishing a pistol like object at the staff and customers. The judge emphasized that the applicant twice pointed the pistol like object at the sergeant resulting in the sergeant discharging his own gun in a public place, thus putting innocent bystanders at risk.

9.The judge adopted a starting point of 18 years and reduced it by one-quarter to 13 ½ years’ imprisonment.

10.Represented by Mr Jackson Poon, the applicant, sought leave to appeal against sentence.

11.On 14 April 2010, we granted the application and treating it as the appeal proper, we allowed the appeal and reduced the sentence to 11 years and 3 months’ imprisonment. We indicated that we would hand down our reasons in due course and this we now do.

Grounds of Appeal

12.Mr Poon suggested that the 18-year starting point adopted by the judge, when compared with other similar cases, was manifestly excessive. Mr Poon referred to SJ v Li Man Biu and Others (unreported CAAR 4/2000), R v Yu Tai Wing (unreported CACC 454/1994), R v Wong Chi Fai & Another (unreported CACC 280/1996), HKSAR v Ng Chun Keung (unreported CACC 295/2005), HKSAR v Mang Wai (unreported CACC 4/2007), HKSAR v Mak Chi Ho (unreported CACC 290/2007), HKSAR v Chow Tat Hi Peter (unreported CACC 60/2005 and HKSAR v Zhang Zhigang (unreported CACC 4/2005),

13.Mr Poon emphasized that the applicant did not threaten or injure anyone, but just briefly pointed the imitation gun towards the staff and customers, making clear to them that he was only interested in money.

14.Mr Poon pointed out that in Li Man Biu (supra), the victim was injured in a robbery involving the use of a beef knife and a pistol, yet only 12 years was adopted as the starting point.

15.Mr Poon emphasized that in Ng Chun Keung (supra) a case involving a number of offences, including attempted murder of a police officer with a firearm, the total sentence was 17 years’ imprisonment, and that in the other cases of robbery involving the use of imitation firearms, the starting points adopted ranged from 10 to 15 years.

The Respondent’s Position

16.Mr E Sean, for the respondent, suggested that the judge was entitled to adopt the 18-year starting point, bearing in mind the aggravating features that he had identified. Mr Sean argued out that much higher sentence was imposed in a jewellery shop robbery case involving a gun battle between the robbers and the police. Mr Sean submitted that simple comparisons between cases of similar nature were not useful.

Discussion

17.There was no clear evidence whether the applicant had a real or imitation firearm, but for the purpose of sentence, we accepted Mr Poon’s submission that it was just an imitation firearm. The judge did not think it made any difference whether it was a real or just an imitation firearm.

18.Robberies of banks, jewellery shops and other establishments in possession of large amounts of cash or valuable items are very serious offences and must be deterred as such establishments offer a great temptation to potential robbers and will be otherwise often targeted.

19.Robberies involving the use of firearm or of imitation firearm are particularly hideous. When law enforcement officers are alerted, they would not be able to tell if the firearm used by the robbers is real or just an imitation, and they might have to resort to their own, thus exposing the public to grave danger.

20.This was precisely what had happened when the sergeant found it necessary to fire at the applicant, although fortunately no one was injured.

21.It is not necessary to refer to the facts in the other cases except to point out that they were all different with varying degrees of seriousness.

22.As the judge had rightly pointed out, there were other aggravating features in this case. The applicant was armed with a hammer and a pistol-like object, and had used them to terrorize the staff and customers of the shop into submission and to prevent any resistance. The applicant then used the hammer to strike repeatedly on the reinforced glass counter containing valuable watches before snatching over half a million dollars worth of watches.

23.In the course of the chase by the sergeant, the applicant twice pointed the pistol like object at him, causing the sergeant to open fire.

24.The offence was clearly carefully planned and skillfully executed. We were of the view that this was a very bad case of the type.

25.However, an 18-year starting point is an unusually heavy sentence for a robbery upon a bank or a jewellery or similar shop with the use of an imitation firearm. The normal starting point, judging from other cases, is one of twelve to fifteen years, which is already much higher than the starting points of 5 to 7 years in other arm robberies (see R v Mo Kwong Sang [2982] HKLR 610). Indeed such a high starting point is adopted because of the important aggravating feature identified by the judge, namely that in a robbery involving the use of an imitation firearm, law enforcement officers might have to resort to and use their own weapons, thus exposing the public to grave danger.

26.Mr Eddie Sean, Senior Assistant Director of Public Prosecution, for the respondent referred us to R v Kam Chun-pang (unreported CACC 504/1991), where robbers wearing stocking masks and carrying hand guns entered a jeweller’s shop and robbed jewellery valued almost $1.25 million. A gun battle erupted in the course of which a robber was shot dead and the applicant was wounded. The Court of Appeal, in dismissing the applicant’s application for leave to appeal against a sentence of 17 years’ imprisonment, made the following observation:

“On a consideration of the facts of this case, we do not think that it can justifiably be said that 20 years was too high a starting point for sentence. Indeed, we feel constrained to say that the starting point was too low; it should have been 25 years.”

27.It is fair to say that Kam Chun-pang (supra) was a much more serious case. There were at least three robbers involved, each holding a handgun. When confronted with the police officers and in trying to escape, a robber had a pistol held at a female hostage and was dragging her along with him. There were then repeated exchanges of gunfire between the police and the robbers, during which the robbers forced the woman hostage to stay with them. When she resisted, one of the robbers pressed her to the ground. We were not persuaded that the starting point suggested in Kam Chun-pang was applicable in the present case.

28.Tso Wo-ping v R (unreported CACC 623/1981) was an attempted robbery of a watch shop when four men went in, one with a gun and two with axes. Two shots were actually fired into the ceiling by way of warning. The Court of Appeal observed that “fifteen years’ imprisonment was appropriate for this kind of robbery or attempted robbery” and that the actual use of a firearm should attract an additional sentence of three to four years, making a total sentence of not less than eighteen years’ imprisonment.

29.If the 18-year starting point adopted by the judge were to be approved, a much higher starting point would have to be adopted in cases where a firearm was actually used or even worse when victims were injured.

30.Despite the present case being a very bad case of the type and the aggravating features identified, we were persuaded that the 18-year starting point adopted by the judge was manifestly excessive and that a more suitable starting point was 15 years.

31.Giving the fact that the applicant denied pointing the imitation firearm at the sergeant, resulting in the need for a Newton Inquiry, which turned out to be against the applicant, the judge was right only to give the applicant a 25% discount for his plea of guilty instead of the usual one-third. Mr Poon did not seek to argue otherwise.

32.The proper sentence should be 11 years and 3 months’ imprisonment.

33.We therefore granted leave to the applicant to appeal against sentence, and treating the application as the appeal proper, we allowed the appeal and reduced his sentence from 13 ½ years to 11 years and 3 months.