HKSAR v. Lee Pau Chuen

CAC C 48/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 48 OF 2011

(ON APPEAL FROM HCCC NO. 137 OF 2010)

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BETWEEN

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Before: Hon Fok JA and Lunn J in Court

Date of Hearing: 19 August 2011

Date of Judgment: 19 August 2011

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Hon Fok JA (giving the Judgment of the Court):

Introduction

1.This is an application for leave to appeal against sentence.

2.The applicant was charged with one count of conspiracy to commit robbery, to which he pleaded guilty and, on 26 January 2011, he was sentenced to 4½ years’ imprisonment.

3.There were four other defendants involved in the conspiracy, who were tried before Deputy High Court Judge E. Toh.  After a voir dire, the 4^th defendant pleaded guilty and the trial continued against the 1^st, 2^nd and 3^rd defendants.  At the conclusion of the trial, they were all convicted of the conspiracy to commit robbery charge and the 1^st defendant was also convicted of an additional charge of possessing a firearm without a licence.

The applicant’s sentence

4.In her reasons for sentence, the Judge noted the applicant played a very important role in the conspiracy as he was the person who had supplied the information of the potential victim to the 1^st defendant, who was the mastermind of the offence.  She noted that the applicant knew the 1^st defendant had obtained a stun gun to commit a robbery.

5.However, she recognised that subsequently the applicant had experienced a pang of conscience and wanted to dissuade the 1^st defendant from carrying out the robbery.  Further to disassociate himself from the plot, he then went to Shenzhen.  The Judge accepted the applicant was remorseful and had cooperated with the police.  More importantly, he pleaded guilty and gave significant evidence against the 1^st defendant contributing to his conviction by the jury.

6.Nevertheless, she considered an appropriate starting point for the applicant’s case should be the same as that for the 1^st defendant, namely 10 years’ imprisonment.  In recognition of the mitigating factors, particularly his significant contribution to the guilty verdicts in the case, the Judge reduced the sentence to one of 4½ years.

The sentences of D1 to D4

7.The sentencing of the other four defendants took place immediately before that of the applicant.

8.In respect of the 1^st defendant, the Judge had no doubt he was the mastermind of the offence which was carefully planned over a period of many days.  In addition, the 1^st defendant had armed himself with a stun gun and had arranged for the 3^rd defendant to bring along restraints in order to tie up the intended victim.  She considered that the sentence she should pass had to reflect not only the horror of the community in relation to robberies of this kind but also to act as a deterrent for people using stun guns to commit robbery, since the evidence disclosed that stun guns are readily available across the border.  The Judge therefore sentenced the 1^st defendant to 10 years’ imprisonment for the conspiracy to rob charge.  For a separate charge of possession of the stun gun, the Judge imposed a sentence of 1 year’s imprisonment to be served concurrently with the sentence for the conspiracy to rob.

9.In the case of the 2^nd defendant, the Judge noted that there was no evidence he knew the stun gun was to be brought to the robbery or that the restraints would be brought by the 3^rd defendant.  However, she considered that he must have reasonably foreseen that some violence or restraint would be used on the victim.  Applying the guidelines laid down by the Court of Appeal in Mo Kwong-sang v R [1981] HKLR 610, she adopted a starting point of 5 years’ imprisonment.  She considered there to be aggravating features in this case because of the potential violence to be inflicted on the victim and also that a number of defendants were to be involved in the robbery.  Furthermore, the robbery was planned to be committed in the premises of a private commercial building.  Bearing all the aggravating factors in mind, she sentenced the 2^nd defendant to 8 years’ imprisonment for the conspiracy to rob.

10.In the case of the 3^rd defendant, the Judge noted that there was no evidence he knew of the presence of the stun gun but she considered that he should reasonably have foreseen that some violence would have been done to the victim as he brought along restraints, intended to be used as hand and leg restraints for the intended victim.  She sentenced the 3^rd defendant to 8 years’ imprisonment.

11.Finally, in the case of the 4^th defendant, the Judge accepted there was no evidence he knew of the presence of the stun gun or restraints but she considered it was reasonable also in his case to anticipate that he must have foreseen some violence would be used on the victim.  She considered that he played a very important part in the carefully planned robbery since he was in constant contact with his accomplices at the commercial building where they were waiting for the arrival of the intended victim.  She considered an appropriate starting point would be one of 8 years’ imprisonment and, taking account of his plea of guilty after the voir dire, she discounted this by 25% resulting in a sentence of 6 years’ imprisonment.

The ground of appeal

12.The sole ground of appeal advanced in the applicant’s perfected grounds of appeal against sentence was that the Judge:

“… imposed a sentence that was manifestly excessive and wrong in principle in that she adopted a starting point that equated the actions of the role of the Applicant as being equivalent to that of the role of the main offender in the conspiracy and failed to take into consideration the fact that the Applicant had withdrawn from the conspiracy at a very early stage and played a very minor role in the planning and operation of the conspiracy.”

13.Mr Richard Donald, counsel for the applicant, went further than this and submitted that adopting a starting point of 10 years, the same as that for the mastermind of the conspiracy, was wrong and that the starting point for the applicant should have been less than that received by the 2^nd, 3^rd and 4^th defendants, i.e. less than 8 years’ imprisonment.  It was submitted on behalf of the applicant that all he did was to provide the name of a victim and to give some details of the victim to the 1^st defendant.

14.We do not agree that the starting point for the applicant should be less than that for the 2^nd, 3^rd and 4^th defendants.

15.Nor do we consider that the Judge was wrong to adopt a different starting point for the applicant as compared to that for the 2^nd, 3^rd and 4^th defendants. The applicant (unlike the 2^nd, 3^rd and 4^th defendants) knew that the 1^st defendant had a stun gun and was intending to use it to commit a robbery.  The applicant suggested the intended victim, who was known to him as a man of means, to the 1^st defendant.  The applicant told the 1^st defendant the victim’s car registration number and the place where it was parked near the victim’s home.  He later drove with the 1^st defendant to the housing estate where the victim lived and pointed out to the 1^st defendant the victim’s car in the car park.  The 1^st defendant promised the applicant a share in the proceeds of the robbery.  At the 1^st defendant’s request, the applicant subsequently went with a person named “Sai Wing” and another person known as “Kam Mo” to the building where the victim’s offices were located in order to locate the exact floor and location inside the building where these were located, although in fact they failed to locate them.  In our view, the Judge was right to describe the applicant as having played a very important role in the conspiracy.  That part, we think, was properly to be regarded as more culpable than the parts played by the 2^nd, 3^rd and 4^th defendants.

16.On the other hand, we do consider that the Judge was wrong to adopt a starting point for the applicant which was the same as that for the 1^st defendant, who was clearly the most culpable member of the group of conspirators.  It was his stun gun, his indebtedness was the genesis of the plot and it was originally his intention to commit a robbery of a passenger in his taxi using the stun gun.  His involvement in the conspiracy was clearly greater than that of the applicant.  The Judge did not explain in her reasons for sentence what led her to take a higher starting point for the applicant to that for the 2^nd, 3^rd and 4^th defendants.  To the extent that they were considered by her to be less culpable than the 1^st defendant, so too, we think, was the applicant.  Furthermore, the Judge accepted that the applicant had withdrawn from the conspiracy and had tried to persuade the 1^st defendant from carrying out the robbery.

17.We therefore consider that the starting point for the applicant should have been slightly higher than that for the 2^nd, 3^rd and 4^th defendants but lower than that for the 1^st defendant. We think a starting point of 9 years’ imprisonment would be appropriate and consistent with the guidelines laid down in Mo Kwong-sang (see p. 611E-G).

18.The applicant should then have been given the usual discount of 50% which is given to those who have pleaded guilty and given truthful and material evidence against others at trial: see HKSAR v Lee Yat-fan, unrep., CACC 414/1999, 30.5.01 and Z v HKSAR (2007) 10 HKCFAR 183 at §23.  Although we note that the discount applied by the Judge to the 10-year starting point she adopted was 55%, we do not consider that any greater discount than the usual 50% is justified.

19.Applying this discount to a 9-year starting point would result in a sentence of 4½ years’ imprisonment.  This is the same sentence as that passed by the Judge, albeit arrived at by a different route.

20.In the circumstances and for the reasons given above, we therefore dismiss the application for leave to appeal against sentence.

Mr Richard D Donald, instructed by Messrs Herbert Tsoi & Partners, assigned by Director of Legal Aid, for the Applicant

Ms Noelle A Chit, Public Prosecutor of the Department of Justice, for the Respondent