HKSAR v. Leung Pui and Others

CACC 349/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 349 OF 2014

(ON APPEAL FROM HCCC NO. 295 OF 2014)

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JUDGMENT

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Hon Lunn VP (giving the Judgment of the Court) :

1.The applicants seek leave to appeal against the sentences of imprisonment imposed on them by Zervos J on 3 October 2014, following their committal to the Court of First Instance for sentence on the pleas of guilty in Eastern Magistracy on 4 July 2014 to a single charge of the attempted robbery of Mr Chan Kam Ping and Madam Lau Yuk Fan on 13 September 2013, contrary to section 10 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200. The 1^st applicant was sentenced to 9 years and 4 months’ imprisonment; the 2^nd, 3^rd, 5^th and 6^th applicants were each sentenced to 9 years’ imprisonment; the 4^th applicant was sentenced to 8 years and 4 months’ imprisonment; and the 7^th applicant was sentenced to 8 years and 8 months’ imprisonment.

The Facts

2.In pleading guilty the applicants each accepted a Summary of Facts as the basis of their culpability in the commission of the offence. The 3^rd, 4^th, 5^th and 7^thapplicants admitted that they had entered Hong Kong illegally from the Mainland, where they were residents. They did so on 11 September 2013. The 1^st, 2^nd and 6^th applicants were residents of Hong Kong. Acting on information, from late July 2013 police officers maintained surveillance on a bureau de change, trading as Leader Realty Money Exchange Shop (“the shop”), in Choi Hung Road, San Po Kong, Kowloon, and on the proprietors of that shop, MrChan and MadamLau, whose home was in Ma Tau Wai Road, Hung Hom.

11 September 2013

3.At 2:15 p.m. on 11 September 2013, the 1^st applicant met the 6^thapplicant at Cedar Street, Mongkok. At around 3:25p.m. they were observed loitering in the vicinity of the shop for about five minutes. Then, at about 3:30p.m. they boarded a Route 5 bus at the bus stop at Yin Hing Street, San Po Kong and disembarked at a bus stop in Chi Kiang Street in Hung Hom, after which they walked to the immediate vicinity of the home of MrChan and MadamLau in Ma Tau Wai, where the 6^thapplicant pointed out their home to the 1^stapplicant.

4.At about 6:45 p.m. all of the applicants, except the 6^thapplicant, were seen leaving premises at 17 Cedar Street, Mongkok. The 3^rd to 5^th and the 7^th applicants travelled together by taxi to Hung Hom, where they met the 6^th defendant who was standing next to a stolen light goods vehicle. All five of them walked to Chi Kiang Street. Then, they walked back and boarded the light goods vehicle, which was driven away. That vehicle had been stolen between 6:00 p.m. on 9 September and 8:30 a.m. on 11 September 2013 from a car park in Tsuen Wan.

5.For their part, the 1^st and 2^nd applicants loitered in the vicinity of the shop in San Po Kong. At about 7:30p.m. MrChan and MadamLau closed their shop for the day. The 1^st and 2^nd applicants went to Yin Hing Street where they boarded a Route 5 bus, as they had done four hours earlier.

13 September 2013

6.Between 6:45 and 7:40 p.m. on 13 September 2013, the 3^rd to 5^th and the 7^th applicants loitered in the vicinity of the bus stop in Chi Kiang Street in Hung Hom and in the neighbourhood of the home of MrChan and MadamLau. For his part, at 7:45p.m. the 1^stapplicant loitered in the vicinity of the Route 5 bus stop in Yin Hing Street in San Po Kong. Then, MrChan and MadamLau closed their business for the day and left the shop. MrChan was carrying a rucksack containing $341,500. They boarded a Route 5 bus at Yin Hing Street, as did the 1^stapplicant. Whilst on the bus, the latter made some calls on his mobile phone. At about this time, the 2^ndapplicant joined and talked with the 3^rd and 5^th applicants at the Route 5 bus stop in Chi Kiang Street. Then, the 3^rd to 5^th and the 7^th applicants walked to a Circle-K convenience store in Ma Tau Wai Road, which lay on the route between the bus stop in Chi Kiang Street and the home of MrChan and MadamLau. There, they waited. For his part, the 2^nd applicant remained at the bus stop.

7.Mr Chan and Madam Lau disembarked from the Route 5 bus at the Chi Kiang Street bus stop and set off walking to their home. Having disembarked from the same bus, the 1^stapplicant followed the couple. He was joined by the 2^ndapplicant. After MrChan and MadamLau had walked beyond the convenience store, the 3^rd to 5^th and the 7^th applicants began following them. At the same time the 1^st and 2^nd applicants desisted in following the couple and walked away.

8.Then, the 7^th applicant walked up to MrChan and, grabbing his legs from behind, brought him to the ground, where he attempted to snatch Mr Chan’s rucksack from him. The 4^thapplicant took a knife from the rucksack carried by the 3^rdapplicant, knocked MadamLau down, and tried to snatch her purse. The 3^rdapplicant pulled out two other knives from his rucksack. For his part, the 5^thapplicant pulled a knife from his waist area beneath his shirt.

9.At that point the police officers who had been observing events intervened. First, they arrested the 1^st, 2^nd and 4^th applicants. The 6^th applicant, who was in the stolen light goods vehicle parked nearby, was also arrested. When a police officer attempted to arrest the 3^rdapplicant, he resisted and tried to attack the officer with the two knives he was wielding. The police officer responded by drawing his pistol which he pointed at the 3^rdapplicant, who in turn fled dropping the knives onto the ground. Eventually, he was arrested by the officer.

10.When a police sergeant attempted to arrest the 5^thapplicant, who was armed with a knife, he resisted. So, the sergeant drew his pistol and pointed it at the 5^thapplicant, who ran away. When another police officer intervened and attempted to arrest the 5^thapplicant, he slashed that officer’s right knee with his knife. However, eventually he was restrained and arrested.

11.For his part, the 7^thapplicant boarded a taxi and escaped. Whilst in the taxi he used the driver’s mobile telephone in six attempts to contact the mobile telephone of the 1^stapplicant. The 7^thapplicant disembarked from the taxi in Cedar Street, Mongkok, and went into the building, followed by police officers. Eventually, he was arrested on the 1^stfloor and found to be in possession of a piece of paper, which contained the details of the mobile telephone numbers of the 1^st and 5^th applicants.

12.The officer who was slashed by the 5^th applicant suffered a 3cm wound to the right knee, which required eight stitches, and abrasions to his left elbow and mouth. MrChan suffered abrasions to his knees, left elbow, fingers of both hands, and an area around his left eye. MadamLau suffered superficial abrasions to the right foot, right knee, right upper arm, and mild tenderness to the right knee and shoulder. They were aged 51 and 53 years respectively.

13.In their records of interview under caution the 1^st and 7^th applicants denied that they had anything to do with the offence. On the other hand, the 2^ndapplicant claimed that he had been asked to act as a lookout, but that he had no knowledge that a robbery was to take place.

14.The 3^rd, 4^th, 5^th and 7^th applicants admitted that they came illegally to Hong Kong from the Mainland. The 3^rd and 5^th applicants claimed that they were recruited in the Mainland to help someone collect a debt in Hong Kong. The 4^thapplicant said after he had arrived in Hong Kong he was asked to assist in the collection of a debt. The 3^rd to 5^th applicants claimed that they promised a reward for playing their part. The 3^rdapplicant said that a debt he owed of $50,000 would be waived and that, in addition, he would be given $20,000. The 4^thand 5^th applicants each claimed that they were promised payment of $10,000 for playing their part.

15.The 6^th applicant admitted that at a friend’s request, he stole the light goods vehicle on 10 September 2013 and replaced its vehicle licence plates with false ones. He was promised payment of $5,000 to transport some persons. On instructions on the evening of 13 September 2013 he parked the vehicle in Hung Hom. He was given a telephone number to call, which number turned out to be that of the 1^stapplicant. He parked the vehicle in Kau Pui Lung Road in Hung Hom, where he was arrested later.

Reasons for Sentence

16.In his reasons for sentence the judge adverted to the judgment of this court in R v Mo Kwong-sang[1] as “setting the tariff after trial for armed robbery cases”. He noted that it was suggested that:[2]

“ …an appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to the victim, should normally be a term of imprisonment of 5 years, which would be increased to 6 years if it also involved an invasion of private premises, and to 7 years if it further involved any physical violence on a victim. The suggested sentences are subject to appropriate adjustment for any aggravating or mitigating factors.”

17.Of the circumstances of the commission of the offence, the judge said:[3]

“ This was a carefully planned and well organised robbery that was to be executed with force and callous disregard to the victims. The 7 defendants were brought together to each play a role in carrying out this armed robbery.”

18.Of the roles played by each of the applicants, the judge said:[4]

“ The 1^st, 2^nd and 6^th defendants observed and monitored the couple beforehand in order to establish their daily routine and movements so as to plan the robbery. The robbery was carefully and professionally executed. A vehicle was stolen and false number plates replaced the existing ones. It was arranged for the vehicle to be located nearby where the robbery was planned to take place with the 6^th defendant at the ready to drive off with the other defendants after the robbery.

The 1^st defendant followed the couple on the day, monitoring their movements and alerting the 2^nd defendant of their impending arrival at the bus stop in Chi Kiang Street. The others, the 3^rd, 4^th, 5^th and 7^th defendants were waiting nearby at a convenience store. They took over from the 1^st and 2^nd defendants, who had been following the couple when they got off at the bus stop.

Moments later, the 4 defendants pounced on the couple. The 7^th defendant attacked Chan and the 4^th defendant attacked Lau. They were both brought down to the ground as they struggled with their assailants. The 3^rd and 4^th defendants armed themselves with knives that they had brought along and the 5^th defendant produced a knife that he had on him.

When the police tried to arrest the defendants, the 3^rd and 5^thdefendants had no hesitation in using their weapons. In the struggle that ensued between the 5^thdefendant and a police officer, the police officer sustained a knife wound to his right knee.”

19.Having addressed the individual backgrounds of each applicant and mitigation advanced on their behalf the judge said:[5]

“ A gang robbery involving weapons and a preparedness to use them warrants severe punishment. Such a crime involves a coordinated and joint effort by all persons involved. The planning and coordination of the gang, the number of gang members involved and the provision of weapons displayed a determination (and) desire to carry out the gang’s criminal objective at whatever the cost, even if it was to cause injury to others.

In this case, the defendants were armed with knives and displayed a clear preparedness to use them not only on the victims but also on the police when they sought to apprehend them at the time of the offence. It was a dangerous situation, and if not for the actions and bravery of the police, could have resulted into something much more serious.

The importing of other persons from mainland China to assist in a criminal enterprise in Hong Kong is to be condemned and is a serious aggravating factor. It was no coincidence, and in my view clearly part of the planning of this crime, that the 4defendants who actually carried out the physical robbery were the imports from mainland China. It would be them, that the victims or anyone else would observe or identify, and that who would promptly leave the jurisdiction after the robbery and be hard to trace.”

The starting point for sentence

20.In the result, the judge stipulated a starting point for sentence of 12 years’ imprisonment for each of the applicants.

Enhancement of sentence

21.The judge stated that he enhanced the sentence of imprisonment to be imposed on each of the applicants. He enhanced sentence in the cases of the 3^rd to 5^th applicants and the 7^th applicant, to reflect the fact that they had come to Hong Kong “illegally from Mainland China to commit a crime”. In addition, for the 3^rd, 5^th and 7^th applicants sentence was enhanced to reflect the fact that they had resisted arrest. Further, in the case of the 5^thapplicant, sentence was enhanced to reflect the fact that he had wounded a police officer with a knife in the course of resisting arrest.

22.The judge said that he enhanced sentence in the cases of the 1^st, 2^nd and 6^th applicants to reflect their roles in planning the robbery and for their “repeated offending for offences of this type of offence.”

The background and roles of the applicants

23.Earlier, in his consideration of the background and role of the 1^stapplicant, the judge said:[6]

“ He has a bad criminal record. Since 1976 he has been convicted of an array of crimes involving drugs and violence. He has a string of prior convictions for robbery and burglary. His last date of discharge from prison was 11 April 2013. He is a recidivist who has shown a blatant disregard and disrespect for the law. As a result of his repeated offending, he poses a serious danger to the community. He said in his cautioned statement that he had nothing to do with the attempted robbery but it is clear from the evidence that he played a principal role as a planner and organiser.”

24.In his consideration of the background and role of the 2^ndapplicant, the judge said:[7]

“ He has a bad criminal record having been convicted on two prior occasions of robbery.

The first occasion was in 1993 when he was sentenced to 8years’ imprisonment for two robberies in which he used an imitation firearm, and the second occasion was in 2009 when he was sentenced to 5years’ imprisonment. He was released from prison for the last offence on 20February 2012. He is a recidivist who has not been deterred by his past encounters with the law and he poses a serious threat to the community as a repeat offender. In his cautioned statement, he claimed that he was asked by the 1^stdefendant to be a lookout, but from the evidence, he was involved in monitoring the movements of the couple and planning the robbery.”

25.In his consideration of the background and role of the 6^thapplicant, the judge said:[8]

“ He said in his cautioned statement that he was asked by a friend to steal a car and to buy a pair of false plates. His friend also asked him to transport some people and he was given the 1^st defendant’s mobile telephone number. He has a bad criminal record and has numerous prior convictions for theft. His last date of discharge from prison was 25 July 2013.”

26.Of the 3^rd applicant, the judge noted that “little, if anything, is known about his background and past record”. The judge said that he rejected the submission made in mitigation that the 3^rdapplicant had brandished the knives in panic, noting that in his out-of-court statements under caution he had said:[9]

“ that he got involved to pay off a debt and sneaked into Hong Kong with a person named “AhKeung”. He was told by AhKeung that they were collecting a debt and that he was to brandish a knife to stop any bystanders getting involved.”

27.Of the 4^thapplicant, the judge noted that in his out-of-court statements under caution he claimed that he had come into Hong Kong illegally in order to assist the 7^thapplicant collect a debt. Noting that he had a criminal record in Hong Kong, the judge said:[10]

“ He has a criminal record in Hong Kong. Since 2000, he has been convicted on a number of occasions of remaining unlawfully in Hong Kong. He has also been convicted of assaulting a police officer and stealing. His last date of discharge from prison here in Hong Kong was 19 January 2010.”

28.Of the 5^thapplicant, the judge said:[11]

“ He has a criminal record in Hong Kong for attempted robbery and remaining in Hong Kong unlawfully in 1995 and for remaining in Hong Kong unlawfully in 2003. His last date of discharge from prison was 4 May 2004.

He fought with the police when they tried to arrest him and he inflicted a knife wound on one of the police officers. He displayed violent behaviour during the attempted robbery.”

The judge’s stipulated enhancement of sentence

29.In enhancing sentence in respect of each of the applicants from the starting point taken for sentence of 12 years’ imprisonment, the judge stipulated the enhancement and gave brief reasons:

(i) 1^st applicant

“ …by 2 years for his role as an organizer and planner of the robbery, including bringing imports from Mainland China to do the physical robbery, and for his repeated offending for offences of this type.” [12]

(ii) 2^nd applicant

“ …by 1½ years for his role as a planner of the robbery and for his repeated offending for offences of this type.” [13]

(iii) 3^rd applicant

“ …by 1½ years for coming here illegally from Mainland China to commit a crime and for resisting arrest with the use of knives.” [14]

(iv) 4^th applicant

“ …by 6 months for coming here illegally from Mainland China to commit a crime.” [15]

(v) 5^th applicant

“ …by 1½ years for coming here illegally from Mainland China to commit a crime and for resisting arrest and wounding a police officer with a knife.” [16]

(vi) 6^th applicant

“ …by 1½ years for his role as a planner of the robbery and for his repeated offending for offences of this type.” [17]

(vii) 7^th applicant

“ …by 1 year for coming here illegally from Mainland China to commit a crime and resisting arrest.” [18]

Discount of sentence

30.The judge stated that he afforded each of the applicants a discount of one-third, to reflect their pleas of guilty, from the sentences of imprisonment that resulted from the addition of the enhanced sentence to the starting point taken for sentence.

Grounds of appeal against sentence

Starting point for sentence

31.Counsel for all the applicants submitted that the starting point taken for sentence by the judge was manifestly excessive. On behalf of the 1^st and 6^th applicants, Mr Wong Po Wing submitted that many of the factors of aggravation in the commission of the offence identified in the judgment of this Court in the Queen v Mo Kwong Sang for a robbery where a weapon was brandished, for which a sentence of 5years’ imprisonment was appropriate, were missing from the circumstances of the robbery committed by the applicants. He invited the court to note that the robbery took place in a public street. There was no invasion of private or domestic premises. He asserted that “there was no physical violence used in the course of the robbery attempt, and that was no ill-treatment of the victims.” On the other hand, he acknowledged that there were aggravating circumstances: there had been planning of the robbery, which involved observation of the victims and their premises; there were seven robbers, four of whom came from the Mainland; injury was caused to a police officer by the use of a knife by one of the robbers.

32.On behalf of the 2^nd applicant Mr Roderick Wu submitted that the evidence did not support the judge’s finding that the 2^ndapplicant was involved in the planning of the robbery. MrWu emphasised that the 7^thapplicant had never been convicted of any criminal offence. On behalf of the 3^rd to 5^th applicants MrGeoffery Chang submitted that, having regard to the judgment of this Court in the Queenv Mo Kwong Sang, in determining the appropriate starting point the judge erred in over-counting the factors of aggravation in the commission of the offence.

Enhancement of sentence

33.Mr Wong Po Wing submitted on behalf of the 1^st and 6^thapplicants that the enhancement of sentence the judge stipulated in respect of each of those applicants was excessive. On behalf of the 1^stapplicant issue was taken with the judge’s findings that his role was that of “an organiser and planner of the robbery, including bringing imports from Mainland China to do the physical robbery”. It was submitted that there was no evidence that he had done any of those things. On behalf of the 6^thapplicant issue was taken with the judge’s finding of his role “as a planner of the robbery” and his determination that he had regard to the 6^thapplicant’s “repeated offending for offences of this type”. The 6^thapplicant had no previous convictions for robbery.

34.It was submitted on behalf of all the applicants that the respective sentences of imprisonment imposed upon each of them was manifestly excessive.

A consideration of the submissions

35.Like the judge, this Court examined the knives that were used in the course of the robbery. They were of broadly similar dimensions, namely with metal handles about four inches in length and with a chopper like blade, in that the tip was not pointed. Three of the knives had blades of about 11½inches in length, whilst the fourth knife, that seized from the 4^thapplicant, had a blade of about 12½inches in length.

36.There is no disputing the judge’s findings of the attempted robbery that it was “carefully planned and well organised”. Further, he was correct to find that it “was to be executed with force and callous disregard to the victims.” The attempted robbery was executed quickly and violently. Both MrChan and MadamLau were violently brought to the ground. In short order three of the four robbers had armed themselves with four of the knives. Each of the robbers grappling with MrChan and MadamLau, namely the 7^thand 4^thapplicants, were each armed with a knife. 　Each was struggling with their respective victims to seize MrChan’s rucksack and Madam Lau’s purse. No doubt, each of them was armed for a purpose. The judge was entitled to find, as he did, that the couple were “indeed fortunate that the injuries they received were not a lot more serious than they were and probably would have been if not the intervention of the police.”

37.That the robbers were not only callous but dangerous was evidenced by the fact that, notwithstanding the intervention of the police two of them, the 3^rd and 5^th applicants, resisted arrest, requiring two of the police officers to draw and point their firearms at the respective robbers. Nevertheless, each of them persisted in their attempts to escape. The 5^thapplicant escaped the attentions of the sergeant, who had drawn and pointed his firearm at him, and used his knife to injure a police constable who came to the aid of the sergeant.

38.That the robbery was carefully planned and well organised was obvious. A vehicle had been stolen by the 6^thapplicant for use as the getaway vehicle. On the afternoon of 11 September 2013 the 1^st and 6^thapplicantshad followed the route of the couple by bus from their shop in San Po Kong to their home in Hung Hom. In the early evening, the 1^st and 2^ndapplicants met up with the contingent of Mainland robbers at Cedar Street, after which the latter made their way to Hung Hom where they met up with the 6^thapplicant at the place where he had parked the stolen light goods vehicle, now bearing false vehicle number plates. Then, they walked to Chi Kiang Street, returned to the vehicle and were all driven away.

39.For their part, the 1^st and 2^nd applicants were at the shop premises when the couple closed up for the day. Those two applicants took the bus to Hung Hom, and to the immediate vicinity of the home of the couple. That, was the second time that day that the 1^stapplicant had made that journey.

40.Clearly, not only were the movements of the couple being monitored, but also the robbers were practising the movements that they put into effect the following day including the route from the robbery back to the getaway vehicle and escape at a similar time of day. Very obviously, as the judge determined, the 1^st, 2^nd and 6^th applicants were all involved in the planning of the robbery.

41.As the judge determined, the aggravating features in the commission of the offence also included the fact that no less than seven robbers had been gathered together to commit the offence. Four of them had come into Hong Kong illegally to participate in the robbery. Further, as the judge found, “Such a crime involves a co-ordinated and joint effort by all persons involved.” In that context, it is to be noted that in his flight after the intervention of the police the 7^thapplicant tried furiously to contact the mobile telephone of the 1^stapplicant and was found in possession of a piece of paper bearing that telephone number.

42.The judge was correct to say that:[19]

“ The importing of other persons from Mainland China to assist in the criminal enterprise in Hong Kong is to be condemned and is a serious aggravating factor.”

They displayed a callousness and singular lack of adverseness to risk and were to be viewed as dangerous and violent men available for hire. As the judge determined, they came to Hong Kong, “illegally from Mainland China to commit a crime”. All the robbers were aware of that.

43.Further, his observation was apposite that the four robbers who came from the Mainland were the ones who were to carry out the robbery, no doubt then to leave Hong Kong immediately illegally as they had entered. That, would have resulted in difficulties in bringing them and the others to justice.

44.We are satisfied that in addition to the litany of aggravating factors to which the judge had regard, there is an addition another factor, namely that the victims of the attempted robbery were operating a money exchange/remittance business. As such, they are to be regarded as vulnerable businesses of a kind similar to banks and jewellery shops.[20]

45.There is no doubt the starting point for sentence stipulated by the judge of 12 years’ imprisonment was severe. However, the crime was very serious. Having regard to the multiple factors of aggravation in the commission of the offence, although we regard it as falling at the top end, we are satisfied that it was within the appropriate range of sentence for the offence.

Enhancement

The 1^st applicant

46.The judge was correct to describe the 1^stapplicant as having a “bad criminal record” and posing “a serious danger to the community”. In 1989, he was sentenced in the High Court to a total of 10years’ imprisonment having been convicted of conspiracy to rob and being in possession of arms/ammunition/an imitation firearm. In 2005, he was sentenced to 2years and 4 months’ imprisonment for an offence of attempted robbery. Subsequently, in the period 2007 to 2012 on three separate appearances in the District Court he was sentenced to a total of 6 years and 10 months’ imprisonment for two offences of burglary, one of attempted burglary and handling stolen goods. Apart from those offences of dishonesty, the applicant was sentenced in 1999 to 4 years and 8 months’ imprisonment for unlawfully trafficking in dangerous drugs.

47.Given the conduct of the 1^stapplicant described earlier in the planning and preparation for the robbery, the judge was entitled to determine that he played a principal role. 　Although the judge went on to say that the 1^stapplicant also played a part in “bringing” the four Mainland robbers to Hong Kong, we do not take that to mean that he was involved in the mechanics of their illegal entry. Rather, he was involved in the coordination of the robbers, including them, leading to the attempted robbery. Soon after their arrival in Hong Kong he was in their company, together with the 2^ndapplicant, in Cedar Street in the late afternoon of 11 September 2013. Obviously, events were synchronised. The light goods vehicle was stolen just before the four mainlanders came into Hong Kong. Then, the 1^stapplicant was involved significantly in not only monitoring of the movements of the couple but also practising the routes to be taken for the robbery and escape.

48.In all circumstances, having regard to the applicant’s appalling criminal record and his role in the commission of the offence we are satisfied that the judge was entitled to enhance the starting point by 2 years’ imprisonment so that the overall starting point taken to sentence was 14 years’ imprisonment. That is a severe starting point for sentence, but it was entirely merited.

The 2^nd applicant

49.Similarly, the judge was entitled to describe the 2^ndapplicant’s criminal record as “bad” and that he was a repeat offender of the offence of robbery. In 1993, the 2^ndapplicant had been sentenced to a total of 13 years’ imprisonment for two robberies, in the course of each of which he was possessed of an imitation firearm. In 2009, he had been sentenced to 5 years’ imprisonment for yet another robbery. Also, the judge was entitled to determine that he was a “planner of the robbery”. The enhancement of sentence of one and a half years’ imprisonment for those reasons was fully justified.

The 6^th applicant

50.The judge was entitled to determine that the 6^thapplicant had a “bad” criminal record. In all he had been convicted of 28 offences of theft. Having been convicted of a total of 20 offences of theft in 2001 and 2002, for which he was sentenced to short terms of imprisonment, on four separate occasions in each of the years 2004, 2006, 2007 and 2008 he was sentenced to terms of 6 months’ imprisonment for offences of theft. Then, in March 2012 he was sentenced to a total of 30 months’ imprisonment for three further offences of theft. Relevant to the fact that the 6^thapplicant stole the light goods vehicle, which he then had driven and that he was to be its driver in the escape after the robbery were his convictions for driving without a valid driving licence in 2008 and 2012. On each occasion he was also convicted of using a motor-vehicle on a road without a valid insurance policy. On the first occasion he was disqualified from holding a driving licence for 12 months. In March 2012, he was disqualified from driving licence for two years.

51.Similarly, the judge was entitled to determine that the 6^thapplicant had played a role as a planner of the robber. That was highly relevant to the issue of enhancement of sentence. On the other hand, the judge was not correct to say that the 6^thapplicant’s repeated offending was for “offences of this type.” He had not been convicted of robbery or attempted robbery before. As noted earlier, the 6^thapplicant had been convicted on multiple occasions of offences of dishonesty. Also, he had been convicted of offences in relation to the driving of a motor-vehicle. Nevertheless, we are satisfied that the enhancement of sentence imposed on the 6^thapplicant was appropriate.

3^rd, 5^th and 7^th applicants

52.In determining to enhance the sentences of imprisonment to be imposed on the 3^rd and 5^thapplicants by one and a half years’ imprisonment, the judge said that he had regard to the fact that they had come to Hong Kong illegally to commit crime and that they had resisted arrest. Both matters were significant factors of aggravation in the commission of the offence. The 3^rdapplicant had brandished one of the knives at a police officer and, in the face of the police officer drawing his pistol, had runaway. The 5^thapplicant had not only brandished his knife but used it to injure a police officer before he was overpowered. For his part, the 7^thapplicant had resisted arrest in the sense that he fled in a taxi and, having disembarked from the taxi, had ran upstairs in the building at 17, Cedar Street until chased down by police officers. Obviously, that conduct was less serious than that of the 3^rd and 5^thapplicants and that was reflected in the lesser enhancement of sentence of only one year’s imprisonment.

4^thapplicant

53.The judge enhanced sentence by six months’ imprisonment in respect of the 4^thapplicant to reflect the fact that he came to Hong Kong illegally to commit a crime. This Court has said on numerous occasions that the fact that the fact that a person comes to Hong Kong in order to commit crime is by itself a factor in aggravation in the commission of the offence then committed by the defendant.[21] The Court was informed at the hearing that the fact that all four of the applicants came to Hong Kong illegally was, as was to be expected, the subject of separate charges brought in the Magistracy. In November 2014 those four applicants were sentenced to terms of imprisonment ranging from 15 months to 18 months, which sentences were ordered to be served wholly concurrently to the sentences imposed in respect of the attempted robbery.

54.We are satisfied that the different levels of enhancement of the sentences imposed on the applicants by the judge accurately and fairly reflected their individual conduct in aggravation of the offences.

Conclusion

55.In all the circumstances, we are satisfied that the sentences of imprisonment imposed by the judge on the applicants, albeit severe sentences, were within the range of sentences available to the judge for this most serious crime. Accordingly the applications for leave to appeal are refused.

Mr Eddie Sean, SADPP of the Department of Justice, for the respondent

Mr Wong Po Wing, instructed by Eli K. K. Tsui & Co., assigned by Director of Legal Aid, for the 1^st applicant and the 6^th applicant

Mr Roderick K. F. Wu, instructed by Damien Shea & Co., assigned by Director of Legal Aid, for the 2^nd applicant and the 7^th applicant

Mr Geoffrey P. Chang instructed by W. K. To & Co., assigned by Director of Legal Aid, for the 3^rd applicant, the 4^th applicant and the 5^th applicant