SECRETARY FOR JUSTICE v. LAM PAK HUNG

HCMP2252/2004, HCMP2254/2004,
HCMP2255/2004 & HCMP2257/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2252 OF 2004

-----------------------------------------

---------------------------

-----------------------

AND

MISCELLANEOUS PROCEEDINGS NO. 2254 OF 2004

-----------------------------------------

---------------------------

BETWEEN

-----------------------

AND

MISCELLANEOUS PROCEEDINGS NO. 2255 OF 2004

---------------------------

---------------------------

BETWEEN

-------------------

AND

MISCELLANEOUS PROCEEDINGS NO. 2257 OF 2004

---------------------------

---------------------------

BETWEEN

-------------------

-----------------------

J U D G M E N T

-----------------------

1. This judgment incorporates the four applications by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap. 221 (“the Ordinance”) for a determination under section 67C(3) of a minimum term for the sentences of the respective respondents Lam Pak Hung (HCMP2252/2004), So Ching Kwan (HCMP2254/2004), Ho Tung Shing (HCMP2255/2004) and Fung Wai Lun (HCMP2257/2004).  All respondents were sentenced to discretionary life terms for the offences which they had committed and in the present proceedings are represented by Mr Rupert Spicer, counsel assigned by the Director of Legal Aid.  

THE CRIMINAL PROCEDURE (AMENDMENT) ORDINANCE 2004

2. In 1996 section 67B of the Ordinance was enacted.  Under that section a sentencer who imposed a discretionary life term was required to at the same time of the sentence state a minimum term of imprisonment that the prisoner must serve.  This enactment, however, did not affect those, the respondents included, who were sentenced to life imprisonment for conviction of offences other than murder before the enactment.

3. In 1997 the former section 67C of the Ordinance was enacted.  Under that section the Chief Executive was empowered to determine, on the recommendation by the Chief Justice, the minimum term to be served by a prisoner who was then serving a discretionary life sentence.  In 1998 the Chief Executive duly made determinations pursuant to that section of the Ordinance.

4. In Yau Kwong Man & Others v. Secretary for Security [2002] 3 HKC 457, Hartmann J held that the powers vested in the Chief Executive under section 67C of the Ordinance were judicial powers and hence unconstitutional when they were exercised by the executive.  The result of the decision was such that the respondents, together with a number of other prisoners who were serving a discretionary life term imposed before 1996, were left in a position where they did not have a lawfully determined minimum term.

5. The legislature acted promptly to remedy the situation.  The Criminal Procedure (Amendment) Ordinance came into operation on 15 July 2004.  The former sections 67C to 67E of the Ordinance were repealed.  The new sections 67C(1) and (3) provide :

“(1) As soon as practicable after the commencement of this section and in any event within 6 months after such commencement, the Secretary for Justice must, in respect of each prescribed prisoner, apply to the court for a determination by a judge under this section.

(2) …

(3) Subject to subsection (4), the judge hearing an application under subsection (1) or (2) must determine the minimum term that the prescribed prisoner must serve for the relevant offence.”

6. A judge of the Court of First Instance is empowered under the new legislation to determine the minimum term to be served by prescribed prisoners who were sentenced to a discretionary life term.

7. The object of the present exercise is therefore for this court to determine the minimum term which the respondents must serve for the offences for which they were sentenced to life imprisonment.  

Meaning of “minimum term”

8. The expression “minimum term” is not defined in the Ordinance but defined in section 4 of the Long Term Prison Sentences Review Ordinance, Cap. 524 as :

“in relation to a sentence, means a minimum term of imprisonment specified or determined under 67B or 67C of the Criminal Procedure Ordinance.”

This definition offers very little by way of explanation as to the meaning of the words.  The term however, received judicial consideration in HKSAR v. Hui Chi Wai (No.2) [2003] 2 HKC 582 at 591B where Stock JA said :

“… [A minimum term] is not designed to provide a sentence of imprisonment in lieu, as it were, of a life term.  It is designed to draw from the court a minimum term of years which the convicted person must actually serve before release, remembering however, and this is an important caveat, that it is inherent in the phrase ‘minimum term’ that the court does not say that that is the stage at which the convicted individual is to be, or even should be, released.  Those who are entrusted with the function of monitoring prisoners serving indeterminate sentences, or long term determinate sentences, and with making recommendations, where appropriate, for release or for the conversion of indeterminate terms to determinate ones, may very well in individual cases decide against the prisoner’s release at the end of the minimum term and, indeed, may decide that release is not permissible for some considerable time beyond that date, or indeed at all.”

9. The term was also considered by Hartmann J in Yau Kwong Man and Ors v. Secretary for Justice [2002] 3 HKC 457.  Having reviewed the English practice the judge observed :

“Under the legislation, indeterminate sentences are now split into two periods : the initial minimum period to reflect retribution and deterrence and thereafter the remainder of the sentence in which rehabilitation is demonstrated.  There is therefore a balance achieved … between the punitive demands of the indeterminate sentence and the welfare of the offender.” (page 489 D-E)

10. In HKSAR v. Cheung Lai Man [2004] 2 HKLRD 473 at 488, Yeung JA said :

“97.  A minimum term is therefore a minimum period of sentence to be served as opposed to the period subject to any deductions.

 98.  The purpose of a discretionary life sentence with a minimum term is twofold.  The minimum term is to serve the purpose of retribution and deterrence, to reflect the culpability of the accused.  The life sentence is with the additional aim of protecting the public.  Therefore, in setting the minimum term, the Court must have regard to the usual mitigating factors.  The Court should also take into account the possible remission for industry and good conduct.”

11. It could be distilled from the above passages that the ‘minimum term’ is the prison term imposed on the prisoner to reflect the gravity of the offences he committed and to reflect retribution and deterrence.  It does not follow, nor is it specified anywhere under the legislative provisions that the prisoner would be released after having served the minimum term.  One needs to look at the wider legislative scheme as to what would happen to a prisoner at the expiration of the minimum term.

The Long Term Prison Sentences Review Board

12. The Long Term Prison Sentences Review Ordinance, Cap. 524 confers wide powers on the Long Term Prison Sentences Review Board (“the Board”), a body appointed by the Chief Executive.  The Board is empowered to conduct reviews of prisoners serving indeterminate and long-term sentences.  Section 12(2) of that ordinance expressly provides :

“(2) On reviewing the sentence of a prisoner, the Board is not authorized to order the early release of a prisoner before any minimum term applicable to the prisoner has been served.”

13. For those prisoners who had already served the minimum term, the Board will consider at regular intervals and make recommendations to the Chief Executive as to how best to deal with the prisoner.  Such recommendations may include substituting a determinate sentence or releasing the prisoners in appropriate cases.  The effect of the present legislative scheme is that where a sentencing judge saw fit to impose a discretionary life sentence, he is required, under section 67B of the Ordinance, to recommend a minimum term for which the prisoner must serve.  The length of the minimum term is determined by reference to the gravity of the offences and with appropriate consideration given to the factors of deterrence and retribution.  That being the case the judge hearing an application under section 67C, in my view, should place himself into the position of the original sentencing judge and recommend a minimum term based on similar considerations.

The court’s approach

14. A considerable time might have elapsed between the original sentence and the application under section 67C.  There might have been significant developments since the respondent’s incarceration so that section 67C(5)(a) provides that the judge may :

“… take into account any material submitted to him by the Secretary for Justice or the prescribed prisoner that is, in his opinion, relevant to the determination.”

By virtue of the above provision, the judge making the determination may take into account any material which have become available to him since the original sentence was passed.  The relevant material must include correctional services reports, psychological and psychiatric reports and submissions by the respondent himself.  The test is one of relevance to the determination.  The categories of relevant materials are not closed and would be peculiar to each respondent.

15. The judge in the present exercise is however expressly precluded from taking into account the previous recommendation or the previous determination by the Chief Executive and the Chief Justice (section 67C(5)(b)).  However, in cases where there had been an appeal against the original sentence, this court is bound by the judgment of the Court of Appeal.  Where the Court of Appeal had expressed a view or made observations as to what the minimum time to be served by the prisoner should be, the court should give regard to those views and observations.

Lam Pak Hung, HCMP2252/2004

Background

16. After his trial before Wong J in the High Court sitting with a jury, the respondent was convicted of seven counts of robbery, seven counts of rape and one count of indecent assault on 1 July 1986.  For the robbery and rape offences, he was sentenced to concurrent life terms.  The respondent’s application for leave to appeal against his convictions was dismissed by the Court of Appeal on 15 January 1987. 

17. The respondent was the leader of a gang of men who raped and robbed throughout Hong Kong from October 1983 until their apprehension in August 1985.  This gang of men would arm themselves with knives and choppers and entered domestic premises in the early hours of the morning.  The occupants of the premises were invariably tied up, assaulted and if there were women present, they would be raped by all or some members of the gang.  The respondent was the 5^th accused at the trial.

18. At the time when the judge passed the sentence on the respondent he made the following observations :

“…. You are without any doubt the leader of the gang and you are the most wicked, evil and brutal man of the lot.  It was you who indecently assaulted the 11-year old girl.  It was you who burned the breasts of the poor woman with a lighted cigarette.  It was you who forced the elderly gentleman to drink a large quantity of brandy until he was drunk and lost consciousness. 

You are not only a robber, a rapist, you are also a sadist.  You are totally unfit for human relationship.  You are a very dangerous man, a great danger to men and society.  A dangerous and verocious [sic] animal cannot be allowed out in the street and you must be locked up and put behind bars for good.  This is what I have to do to you.  It is very unpleasant but I must do my public duty.  Decent men and women must be protected from maniacs like you.  In respect of each and every count of robbery which you have been convicted, the sentence is one of imprisonment for life. …”

19. The respondent was born in China in 1955.  He had not received any formal education and has very limited reading and writing skills.  In 1978 he came to Hong Kong when he was aged 23.  He married in 1980 and raised a family of two children.  While in prison in 1992 his wife divorced him.  The respondent has three previous convictions, two of which were for the offence of loitering and one for possession of instrument fit for an unlawful purpose.  At the time of this application the respondent has been in prison for almost 19 years.  

The Reports

20. The Correctional Services Report dated 23 March 2004 indicated that the respondent encountered “a great deal of adjustment problems at the initial stage of his imprisonment”.  There had been a total of 15 breaches of Prison Regulations between 1986 and 1994.  The last one was in 2000.  Most of the breaches were related to violent encounters with fellow inmates and being disrespectful to prison officers.  In recent years the respondent had adopted a submissive attitude towards prison staff and he managed to stay out of further trouble.  The respondent had participated in rehabilitative programs including social skill training.  His progress was observed to be steady and he had taken steps to improve his social and interpersonal skills.  The respondent’s overall institutional behaviour is graded as “above satisfactory” and his overall performance grading is “B+”.

21. The Psychological Report prepared by Mr Francis Butt, Clinical Psychologist of the Correctional Services Department dated 1 February 2005 casts the respondent in a much less favourable light.  The respondent maintains an attitude of denial regarding the rape offences.  The clinical psychologist observed :

“The lack of insight remains as a significant barrier to LAM’s successful rehabilitation.  Although he has repeatedly exhibited remorse for his misdeeds, he continuously claimed to have difficulty in recalling the details of his crime series due to memory problem.  As far as the sexual assaults were concerned, LAM denied he had ever raped any of the female victims.  He only confessed that he had indecently molested one of them.  In view of his claims, it is speculated that LAM is not ready to examine his psychosexual problems at the present time.”

22. Because of this attitude, the psychologist concluded that the respondent is unlikely to benefit expediently from psychotherapeutic programmes, and it is likely that the respondent would resort to re-offending if he is released at the present stage.  In the final paragraph of the report, Mr Butt observed :

“…. Although his satisfactory performance in prison in the past ten years and his gradual, but inconsistent, effort in getting involved in the treatment process suggested a promising prognosis, his denial of his psychosexual problems, his reluctancy in examining or revealing the details of his offences and the lack of a significant support system outside prison remains as high risk factors which may contribute to his chances of re-offending. ….”

23. The Visiting Consultant Psychiatrist of the Siu Lam Psychiatric Centre, Dr C.H. Yuen is equally concerned with the evasive attitude adopted by the respondent as to the offences.  The doctor is doubtful of the respondent’s claim that he had completely lost sexual interest for several years.  The doctor also has doubts about the claim by the respondent that he has matured significantly during his period of incarceration.  The doctor concluded by saying :

“…. There is still a lot of unknown about his inner world.  The only encouraging feature is that he had been quite settled in prison and had not caused any major trouble in the past few years.  Increasing age should be another favourable factor as far as risk of further violence is concerned.”

24. From the contents of the report, it appears that the respondent had adopted an evasive attitude towards the offences he committed.  He has very little insight and it is doubtful whether there would be any significant change in his attitude and behaviour in the near future.

25. No doubt the Board will address the issues fully when the respondent appears before it in the future.

The appropriate minimum term

26. In HKSAR v. Cheung Lai Man [2004] 2 HKLRD 473, the Court of Appeal set aside three concurrent terms of life imprisonment imposed on the appellant on three counts of rape to which he pleaded guilty.  The victims in that case were students aged between 12 and 21 and were attacked while on their way to school.  It was a premeditated and well-planned attack and the assaults were recorded on video tapes that formed part of the appellant’s pornographic collection.  The sentencing judge specified a minimum term of 20 years’ imprisonment for the life terms.  In substituting a starting point of 18 years for each count of rape, the Court of Appeal gave a one-third reduction to reflect the guilty pleas.  The six years on each of the remaining two counts of rape were ordered to run consecutively to the 12 years on the 1^st rape count.  The total sentence imposed on the appellant was one of 24 years’ imprisonment.

27. The Court of Appeal in Cheung Lai Man (supra) furtherobserved that the original minimum term of 20 years’ imprisonment was excessive.  If one is to work backwards and give appropriate discounts for the appellant’s guilty pleas and the remission he would have been given under the Prisons Ordinance, Cap. 234, the original sentence was equivalent to an effective starting point of up to 45 years’ imprisonment.

28. It would be unrealistic in the present case, in my view, to go through the exercise of passing a sentence on each of the offences for which the respondent was convicted.  One must give regard to the totality principle in cases of this nature.  On the assumption that each rape count would have attracted a prison term of 12 years and each robbery count a term of eight years’ imprisonment, one would have no difficulty in arriving at a global sentence of 40 years’ imprisonment.

29. A prisoner serving a prison term other than a life imprisonment is entitled to a remission of up to one-third of the total actual prison term for his industry and good conduct pursuant to rule 69(1) of the Prison Rules of the Prisons Ordinance, Cap. 234.  Given the one-third remission from the global sentence 40 years’ imprisonment, the net term to be served by the respondent would have been a term in the region of 25 years’ imprisonment.

30. For the reasons stated, I determine the minimum term that the respondent Lam Pak Hung must serve for the offences of rape and robbery to be one of 25 years.

So Ching Kwan, HCMP2254/2004

Background

31. In August 1991 the respondent So Ching Kwan appeared before Ryan J in the High Court on an indictment containing six counts.  He pleaded guilty to one count each of robbery, possession of a firearm at the time of committing a robbery and false imprisonment.  He pleaded not guilty to one count each of shooting with intent, attempting to discharge a loaded gun and manslaughter.  The jury found the respondent not guilty on the shooting with intent count.  He was found guilty on the attempting to discharge a loaded gun and the manslaughter counts.

32. On the manslaughter count the respondent was sentenced to life imprisonment.  On the remaining counts the respondent was sentenced to a total of 25 years’ imprisonment.

33. This application relates only to the life sentence passed on the manslaughter count.

34. These charges arose out of simultaneous robberies in Central of jewellery shops in the afternoon on 28 August 1990.  The respondent, together with three other men armed with guns and knives took a large quantity of gold and jewellery items from the jewellery shops.  The police was alerted and the robbers were pursued to the MTR station entrance at the junction of Hillier Street and Des Voeux Road in Sheung Wan.  What happened afterwards was summarized by the judge in his reasons for sentence :

“At that point 3 of the men escaped into the crowd but the defendant took as a hostage a 16-year-old school girl and, with his arm around her neck and with his revolver to her temple, made threats to the police that he would shoot her.  At some point in this early stage of the incident, he discharged his gun.  It was the Crown case that he had shot at Station Sergeant Lau.  It was the defendant’s case that he had shot into the air.

The defendant then took the girl into the concourse of the MTR and from there to the exit at Wing Lok Street, pursued by the police.  From Wing Lok Street he went to Hillier Street where he attempted to take over a private motor car and then a taxi, being unsuccessful in both attempts.

By this time a large number of police officers had assembled in the area of the junction of Hillier Street and Des Voeux Road, including Sergeant 19224 who was behind a rubbish bin a few feet from the MTR entrance.  The defendant dragged the girl past the sergeant to the MTR entrance where he stood with his back to the wall holding the girl as a human shield between him and the police officers, at which point he was still telling the police officers not to move and what he was likely to do.

Sergeant 19224 was then in a precarious position of being 3 to 4 feet in front of the girl and the defendant.  He was at the time pointing his revolver at the couple.  The defendant’s gun was still at the girl’s temple.

At that point the sergeant saw the girl move in a downwards and sidewards direction and the defendant suddenly pointed his gun at him.  At that point he was seen by Station Sergeant Lau to draw the trigger on the gun that he was holding, pointing at Sergeant 19224.  At that time he believed, and so did Sergeant 19224, that a shot had in fact been discharged but it was the ballistics evidence that the gun had jammed after the first shot had been fired and that no bullet could have been discharged at that time.

After firing a shot at the defendant, Sergeant 19224 turned and ran towards the tram-stop in Des Voeux Road.  He heard another shot and, believing that to have been fired by the defendant, he turned and fired another shot in the direction of the defendant.  The shot he had heard was in fact fired by a police inspector who was then in Hillier Street.  He shot at and hit the defendant.

The evidence was that one shot from Sergeant 19224 had hit the defendant.  The other shot had missed the defendant and tragically ricocheted off a hoarding and hit a pedestrian, a Mr Wong, who must have at that time been in Hillier Street.

The defendant who was wounded was arrested at the scene and 2 bags containing some of the stolen items were found in his possession. ….

…

In your statement to the police, you said that you had released the girl being concerned about her and that you were then shot.  That might have suggested that you had at that time a pang of conscience or onset of compassion towards her.  But you showed your true colours when you gave evidence and said that your concern was that if she was shot, then you would be exposed, and that you had not released her but simply moved her partially to one side so that you could more freely use your revolver in your action towards the sergeant.

You also admitted that at the time that you were fully aware that other persons – the hostage, the policemen or passers-by – could have been hurt by your actions.

Your counsel on instructions has said to me that you are full of remorse about this matter.  I can tell you that the impression I formed of you when you gave evidence is that you are a man totally without remorse for what you have done other than having been caught.  And I see it as my duty to show you that the courts in Hong Kong will not put up with violent crimes of this nature.”

35. The respondent applied for leave to appeal against his life sentence on the manslaughter count.  In dismissing the application the Court of Appeal observed :

“Here the facts were, as we have said, distressingly familiar, involving the actual use of firearms in order to carry out a robbery of a goldsmith shop and to evade arrest.  The taking hostage of a young girl who was passing by, the threat to kill her and the use of a gun in an MTR station with many innocent passers-by present show a total disregard for human life.  There is, understandably, a very strong feeling among the Hong Kong public at the moment that the perpetrators of offences of this sort should be shown no mercy whatever.”

36. Apart from the present series of offences the respondent has no previous conviction.  At the time of the hearing, the respondent has served 13 years’ imprisonment.

The Reports

37. This court has before it reports prepared by the Correctional Services Department, the Clinical Psychologist and the Visiting Psychiatrist from the Siu Lam Psychiatric Centre.

38. In the Correctional Services Report dated 21 June 2004, it is reported that the respondent had encountered significant adjustment problems at the initial stage of his imprisonment.  Since admission, he had incurred six reports for breach of Prison Regulations with the last one in February 2002.  In recent years however, his behaviour began to improve and he had managed to stay out of trouble for the past two years.  His overall institutional performance is described as “above satisfactory”.  His overall performance is graded as “B+”. 

39. The Clinical Psychologist, Mr Francis Butt states in his report dated 1 February 2005 that :

“Overall assessment suggested that SO is mentally and intellectually functional.  Despite of his poor educational and vocational experiences, he is capable of differentiating right from wrong.  Cognitive impairment is not detected.  Evaluation on his violent recidivism does not provide any concrete evidence indicating that he is now still a violent threat to the community.  Although his response to treatment through therapy or other rehabilitative procedure is, so far, fair at best, his reformed attitude and improving behavioral compliance are considered to be positive factors minimizing his chances of reacting to displeasure by means of violence.  However, his lack of motivation to seek psychological services may continue to be a major risk factor preventing him from exploring into the psychodynamics behind his criminal conduct which may lead him back to crime to satisfy his instant needs.  Prognosis for SO can be more promising provided that he becomes more open to psychotherapy to cope with his inner vulnerabilities.”

It is evident from the above passage that the Clinical Psychologist remains cautious as to the respondent’s likelihood of violent recidivism.

40. In the report by the Visiting Psychiatrist dated 14 February 2005, the respondent is diagnosed as not suffering from mental problem and there is no history of mental illness.

41. The Board will in time address the issues of rehabilitation and the prospects of successful future re-integration into society in depth when the respondent appears before it in the future.

The appropriate minimum term

42. In the present case, the circumstances of the death of the innocent passer-by is somewhat usual.  The gang of robbers were pursued by the police and in an attempt to make good his escape, the respondent held a hostage in front of him.  The hostage was a teenaged girl.  The respondent was holding a pistol, and in the course of the pursuit by the police the respondent attempted to fire a shot at a police officer.  The pistol was jammed so that no bullet was discharged.  The officer, sensing that he was being shot at, returned fire.  The shot fired however missed the respondent and killed the innocent passer-by.  The unlawful acts which caused the death of the passer-by was that the respondent was holding a hostage in front of him and he being in possession of a pistol attempted to shoot at the police officer.  The police officer was acting in self-defence when he returned fire.  This was done in the course of his execution of his duties.  Although it is not the bullet from the respondent’s pistol that killed the passer-by, it was the series of unlawful acts which were attributable to the respondent that caused the eventual death of the deceased.

43. This is an extremely serious case of multiple robberies of jewellery shops by persons armed with firearms.  A hostage was taken and shots were exchanged between the robbers and the police.  The acts of the respondent clearly indicated that he had a total disregard of the law as well as the well-being of others.  I consider the appropriate sentence for the charge of manslaughter to be a prison term of 18 years.

44. A prisoner is entitled to a remission of up to one-third of the total actual prison term for his industry and good conduct pursuant to rule 69(1) of the Prison Rules of the Prisons Ordinance, Cap. 234.  Given the one-third remission, the resulting term that should be served by the respondent would be a term of 12 years’ imprisonment.

45. I determine the minimum prison term the respondent So Ching Kwan must serve for the offence of manslaughter to be 12 years.

Ho Tong Shing, HCMP2255/2004

Background

46. On 22 November 1993, the respondent Ho Tung Shing pleaded guilty before Leong J (as he then was) to 16 counts of robbery, one count of possession of an imitation firearm at the time of committing a robbery, three counts of attempted robbery, two counts of using a firearm with intent to resist lawful arrest and one count of possession of arms and ammunition without a licence.

47. On 20 December, the judge passed sentences of life imprisonment on 15 of the robbery counts and on the two counts of using a firearm with intent to resist lawful arrest.  He had seven previous convictions prior to the present series of robberies.  His criminal activities started in 1974 and in the eight-year period that was to follow, he had committed multiple offences of robbery, burglary and taking conveyance without authority.

48. Subsequent to the convictions and sentences referred to previously, the respondent was tried for one count of murder in December 1993.  The jury found him not guilty of murder but guilty of manslaughter for which the trial judge imposed a sentence of 25 years’ imprisonment.  At the time of this application the respondent has been imprisoned for 11 years.

49. The respondent was a member of a syndicate of 11 persons responsible for a series of robberies and attempted robberies committed between June 1986 and November 1991. 

50. The shops targeted by the gang were high-end jewellery shops located in shopping arcades.  Properties taken were expensive jewellery items and watches.  The value of the properties stolen in each count ranges from $100,000 to, in one case, $27,000,000.  The total value of properties taken, as listed in the indictment, is in excess of $124,000,000.

51. In passing sentence on the respondent Leong J observed :

“You were the ringleader of this gang consisting of members close to your family.  You were the head of this syndicate equipped with firearms.  In your home on the 1^st November , 1990 when the police made the search, they found a small arsenal of handguns — four semi-automatic pistols, one 9 mm semi-automatic pistol, one 0.31 revolver, and assorted ammunitions.  This forms the subject matter of the last count on the indictment against you, that is, the 25^th count.

These robberies were all well planned and then you assigned to each participant the role they should take in carrying out these robberies.  Transport facilities and telecommunication equipments were at hand for use to facilitate getting away.

In all those robberies and attempted robberies where a shot or shots had been fired, it was you who fired the shots.  So, it would appear that you had no hesitation in firing your gun if you were obstructed in the robberies, or your attempts to escape after the robberies, or attempt to rob.

You fired at Mr. YEUNG, the passerby; opened fire on Mr. MA, the jewellery shop proprietor, and Mr. CHENG of Shui Hing, without regard.  All you wanted was to get away.

I cannot think of a worse case of syndicated, large scale, robbery than the present one in which you were involved as the headman.  You were in possession of an arsenal of firearms and ammunition.  I cannot imagine a worse case of you using firearms to shoot without regard to serious injury or human life.”

52. The respondent applied for leave to appeal against his sentences which application was heard and dismissed by the Court of Appeal on 1 September 1994.

The appropriate minimum term

53. The respondent was the mastermind of a highly dangerous gang of armed robbers.                     For the offences which the respondent had committed, I have little difficulty in arriving at a global prison term of between 45 to 50 years’ imprisonment.  For his plea, he would have been given a discount of one-third from the global sentence.  Taking the lower figure of 45 years, the figure after the one-third discount would be a term of 30 years’ imprisonment.

54. In addition to the discount, a prisoner is entitled to a remission of up to one-third of the total actual prison term for his industry and good conduct pursuant to rule 69(1) of the Prison Rules of the Prisons Ordinance, Cap. 234.  Given the one-third remission from the discounted term of 30 years, the minimum term to be served by the respondent should be a term of 20 years’ imprisonment.

The Reports

55. The latest Correctional Services Report, Psychological Report and Psychiatric Report have cast the respondent in positive light in his future prospect of rehabilitation and also on his behaviour during the period of imprisonment.  The respondent still has many years to serve before the minimum prison term expires.  No doubt the Board would take into consideration the relevant factors as and when the respondent is scheduled to appear before it.

56. For the reasons given, the minimum term to be served by the respondent Ho Tung Shing is one of 20 years’ imprisonment.

Fung Wai Hon, HCMP2257/2004

Background

57. The respondent Fung Wai Hon together with five others were indicted for multiple offences involving robbery, possession of arms and ammunition without a licence, shooting with intent to resist lawful arrest, causing an explosion and taking conveyance without authority.  The respondent pleaded guilty to nine counts of robbery, six counts of possession of firearms and ammunitions, two counts of shooting with intent to resist lawful arrest, one count of shooting with intent, four counts of causing an explosion and three counts of taking conveyance without authority.  On the two counts of shooting with intent to resist lawful arrest, one count of shooting with intent and four counts of causing an explosion, the judge imposed a life sentence on the respondent.

58. From the facts revealed in this case, the respondent was the mastermind of a highly dangerous gang of armed robbers who had committed no less than nine armed robberies throughout Hong Kong from April 1991 to April 1992.  On each robbery, members of the gang were armed with handguns, automatic weapons, grenades and shotguns.  On each occasion, shots were fired in the course of the robbery and during their escape from the scene.  On some occasions, vehicles were hijacked at gunpoint to enable the gang to flee the scene.

59. On 24 April 1992, a police party acting on information raided a flat in Li Tak Street, Tai Kok Tsui, which turned out to be the hideout of the gang.  Instead of surrendering themselves to the police, the gang tried to escape.  Each member of the gang was heavily armed variously with automatic weapons, grenades, pistols and shotguns.  In the ensuring running gun battle, a police inspector was shot and seriously injured.  The shootout between members of the gang and the police was of unprecedented proportions.  Although a number of policemen and civilians sustained gunshot or shrapnel wounds, no one was killed or seriously injured apart from the police inspector.

60. I find myself inadequate in finding the appropriate superlatives to describe the seriousness of the criminal activities of this gang and the dangers they posed to the public.

61. Duffy J made the following observations when he passed the life sentences on the respondent :

“… you were undoubtedly the leader of this gang of brigands.  You have pleaded guilty to 25 counts in all, which include nine armed robberies, three cases of shooting with intent, six cases of possession of arms and ammunition without a licence, four instances of throwing hand grenades in the public streets, and three cases of hijacking vehicles in the course of your escape.  You were the organiser and motivator.  It was you who arranged for the mainlanders to be smuggled into Hong Kong, it was you who arranged for housing them and feeding them, all for the purpose of committing robberies, and it was you who provided the weapons, including the hand grenades.  Your criminality takes you far out of the reach of a finite term of imprisonment.  Your pleas of guilty in such circumstances cannot avail you much.  Indeed, virtually nothing said in mitigation can affect the sentence in cases of this magnitude.”

62. The respondent, together with a number of other co-accused, applied for leave to the Court of Appeal to appeal against their sentences.  The Court of Appeal allowed the respondent’s appeal against his sentence to the extent that life sentences in respect of one count of causing an explosion, one count of shooting with intent to resist lawful apprehension, and one count of shooting with intent to do grievous bodily harm were set aside and substituted by determinate sentences of 19 years’ imprisonment.  The life sentences for one count of shooting with intent to resist lawful arrest and three counts of causing explosion were upheld.  Mayo J (as he then was) in giving the judgment of the Court of Appeal said :

“We have no doubt that D6’s criminal conduct in the present case called for the sentence of life imprisonment which was imposed.  It is possible to distinguish his culpability from the other applicants.  The actions particularly in relation to the shootout demonstrated that D6 was the ring-leader and overall mastermind behind these robberies.  In this connection it was he who recruited the other applicants from China and arranged for them to come to Hong Kong and commit these offences.  In addition to this the fact that he has taken an active part in 9 armed robberies means that he has to be treated for sentencing purposes much more severely than the other applicants.  We can see no grounds for interfering with the sentences which were imposed on D6 so far as the shootout was concerned.”

63. The respondent was sentenced on 2 May 1994 and at the date of this hearing, he has been in custody for some 11 years.  There is yet several years for the respondent to serve on the determinate sentences in respect of the other counts before his case can be reviewed.

The Reports

64. According to the Psychiatric Report dated 24 February 2005 prepared by Dr S.H. Lui, the respondent is not suffering from any mental illness.  The Clinical Psychologist, Mr Francis Butt, is of the view that the respondent have gained some insight into his criminal behaviour and his general risk of recidivism is assessed to be moderate.

The appropriate minimum term

65. The offences committed by this respondent is of the most serious nature.  A global sentence of 50 years’ imprisonment would not have been inappropriate for the offences for which he was sentenced to life imprisonment.  Giving a one-third discount for his plea, he would have received a term of 33 years’ imprisonment.

66. A prisoner is entitled to a remission to one-third of the total actual prison term for his industry and good conduct, pursuant to rule 69(1) of the Prison Rules of the Prisons Ordinance, Cap. 234.  Given the one-third remission from the 33-year term, one would arrive at a figure of 22 years.

67. For the reasons given, I determine the minimum prison term the respondent Fung Wai Hon must serve for the offences to be 22 years.