THE QUEEN v. SHUM CHUNG LEUNG

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

JUDGMENT

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

Silke, V.-P.:

1. This is the judgment of the Court.

2. The applicant, Shum Chung Leung, aged 32, faced an indictment containing four counts. To three of those counts he pleaded guilty and on the fourth, which was the use of a firearm with intent to resist arrest, he was convicted after trial before His Honour Judge Sharwood sitting as a Deputy Judge of the High Court and a jury.

3. The deputy judge proceeded to sentence in relation to all four counts. The first of the counts to which the applicant pleaded guilty was possession of a firearm at the time of committing a robbery, the second was robbery itself and the third was false imprisonment. The sentences imposed were, respectively, 11 years' imprisonment, 15 years' imprisonment and 5 years' imprisonment. There was imposed a sentence of 5 years' imprisonment on the fourth count upon which he had been found guilty after trial. The judge, clearly having the issue of totality in mind, made the first two sentences concurrent one with the other and the second two sentences concurrent one with the other but consecutive to the first two, thus achieving a totality of 20 years' imprisonment.

4. The applicant now seeks leave to appeal against that sentence.

5. At the outset today he asked this Court to adjourn the application on the basis that he had not sufficient time to provide himself with legal representation after his application for Legal Aid had been refused. A form acknowledging that refusal was signed on 22nd November 1990 and he was informed that the hearing date was today on 7th December, well over six weeks ago. He told us that his family had started to raise money and started to approach a lawyer but that is where the matter rests. We refused that application and proceeded to hear him in relation to his application to appeal against sentence.

6. The grounds he advances to us are that the sentence is excessive, that this was a first offence, that he has three children and that it is necessary for him to support his family. He requests that the sentences all be made concurrent.

7. The facts basing the sentences passed were that, on 20th December 1989, a robbery took place at the Hopewell Trading Company at 57, King Wan Street. It would appear that there were three persons involved, two of whom had guns, one of whom had a knife. The applicant was one of the persons carrying a gun. The proprietor, Sze Chi Man, identified the applicant and as we have already said, the applicant pleaded guilty to this offence.

8. A relative had noticed something unusual going on and had informed the police. As the robbers were about to leave they seized two hostages, the wife of the proprietor, Madam So Wai Ying, and her mother-in-law, an elderly lady. The applicant and another robber held pistols to the head of Madam So. The old lady was released by pushing her down the stairs. The applicant left with Madam So who must have been in a state of considerable terror. He remained armed and shots were fired. The police who were outside the premises started to close in and were threatened with the gun. One intrepid police constable, Lau Hoi Tung, chased after the applicant despite his being threatened with the gun and despite the fact that he was aware that the applicant had fired shots from that gun. Eventually, when the applicant was attempting to board a taxi, he was shot by the constable in the neck and dropped his gun in the taxi. The gun, when later recovered, was found to have jammed as a result of having been fired at the earlier stage.

9. In passing the sentence he did the trial judge said:

"It has to be said that this kind of conduct cannot be tolerated by the community."

He had borne in mind the matters to which we have referred and underlined the gravity of the offences committed by the applicant, the terror which must have been engendered in the mind of that unfortunate woman who was held hostage, the carrying of the gun and the firings of it. He took into consideration the fact of the pleas to the first three counts, indicating in the course of his reasons for the sentence the discount which he gave - there was, of course, no discount to be given in respect of the fourth count upon which there had been a full trial. In arriving at the quantum of that discount, the trial judge took into consideration that the applicant had been caught red-handed. He might also have considered the trial which had taken place as diminishing it. The one minor conviction which the applicant had did not affect the quantum of sentence.

10. This is the sort of behaviour which cannot be tolerated in any civilized society. It justifies condign punishment. We do not consider the sentence here, in its totality of 20 years, to be in any way wrong. The application for leave to appeal against sentence is refused.