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HCCC 395/1993
HCCC 28/1994
(Heard together)
[2019] HKCFI 1005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NOS 395 OF 1993 AND 28 OF 1994
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| Date: |
1 March 2019 at 11.51 am |
| Present: |
Mr Duncan Percy, on fiat, for HKSAR |
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Mr David Boyton, instructed by Huen & Partners, for the
accused |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
The defendant, Mr Yip Wing-fat, was charged with one count of robbery. On 15 February 1993 the defendant, together with others, robbed the Emperor Gold and Jewellery shop in Metropole Building, Kings Road, North Point.
The defendant and four others were charged and tried in June 1994 in what I call the first High Court trial. The defendant was on bail at the time. The 4th defendant and Mr Yip, named as the 5th defendant in that first trial, challenged their record-of-interviews and a voir dire was conducted first.
That voir dire, for both defendants, lasted 16 days and the court ruled all record-of-interviews voluntary and admissible.
That ruling was given on a Friday, 8 July 1994 and the defendant absconded before Monday morning, before the trial recommenced on that Monday. He did write a letter to the court declaring his disappointment at the voir dire ruling and because he could not get a fair trial, he would no longer attend.
I can see from the court file that not long before the trial commenced, the 3rd defendant had decided to assist the prosecution and give evidence against the 4th and 5th defendant. That meant there was going to be accomplice evidence as well as the record-of-interview against this defendant. I imagine with that in mind, this defendant did not like his chances before a jury and decided to abscond before the jury was empanelled.
He absconded for 24 years before surrendering himself to the police on 10 April 2018. He gave no detail to the police but said in his oral evidence that he surrendered himself because the legal system was now fairer as a result of the reunification with Mainland China.
Firstly, the legal system has not changed as far as his High Court trial was concerned, or is concerned. And secondly that reunification was 21 years before he surrendered himself. I doubt that is the reason he has now surrendered.
In 1994 there was no offence of failing to answer bail or absconding, therefore I do not intend to consider it in my sentencing process. In fact, it would be wrong for me to increase or reduce the starting point because he absconded.
It is indisputable that the facts of this robbery were very serious. A jewellery shop was held up by masked men brandishing guns. It was planned in that there were two men who went to the shop and one outside acting as a look-out. They were all mainlanders, illegally in Hong Kong, and not Hong Kong residents. There was a fourth man in the adjacent street in a getaway car, waiting for them. A car that had been stolen to order with false registration number plates attached.
The three robbers were unable to find the getaway car and tried to escape by hijacking another car and then a lorry. Both had their drivers inside. These drivers had to deal with men brandishing guns. By then the police had arrived and there was a shoot-out in that street. A grenade was thrown at police from the lorry, which exploded and caused injury. Many shots were fired and one robber was shot dead. Another robber was shot in the shoulder and injured, but he survived.
The getaway driver was arrested in a nearby street because he drew suspicion to himself when a police officer saw his hands were covered in glue. Glue to ensure his fingerprints were nowhere.
This defendant was arrested five months later on 16 July 1993 and under caution, he admitted to the police that he was only a middle man in this robbery. He had introduced the 4th defendant to another man, “tai hao chai”, still a wanted man, so that they could plan this robbery. He told the police of four meetings between himself and these men. He knew they were going to commit a robbery on that day and he would receive $50,000 reward for the introduction.
The 4th defendant had been arrested by the police only two days before this defendant, on 14th July. The defendant also told “tai hao chai” who to contact, Wong Lin-fat, when he said to the defendant that they needed a man, “Who knew cars well”.
The defendant said he did not know what they discussed but it is an Admitted Fact that Wong was ultimately responsible for stealing the getaway car for the robbery. I doubt very much the defendant did not know what they discussed. He recommended and effectively introduced a car thief to a man planning a robbery.
When the robbery went very wrong, the 4th defendant called this defendant to tell him and to ask him what he should do next. The 4th defendant travelled to China where this defendant later also travelled, to take him $3,000 cash for his living expenses. When that 4th defendant sneaked back into Hong Kong, this defendant told the police that he provided him with a forged identity card, obviously to avoid, to attempt to avoid arrest.
The 4th defendant was also not present at the scene of the robbery. According to the defendant, he was one of the masterminds yet I note he turned to the defendant when the robbery failed spectacularly. It would suggest that the defendant was more than just a middle man.
The only evidence against this defendant now is the record-of-interview. The prosecution could not locate many witnesses, in particular that 3rd defendant who was back in 1994, prepared to give evidence against this defendant. He has long served his sentence and even if he could be located, it would not serve any purpose for him to agree to give evidence now.
The defendant’s record-of-interview amounts to an admission he was in a joint enterprise with other defendants and other people. The defendant gave evidence that he was assaulted by the police and forced to sign the record-of-interview, which he says was fabricated by the police themselves. The defendant said he never made any admissions, nor knew any of the other defendants, including the 4th defendant named in his record-of-interview.
The jury obviously believed he did and by a majority of five to two, convicted him after trial.
Before this jury was empanelled, two applications were dealt with. I rule that the prosecution could rely on the voir dire ruling of July 1994.
The defence applied to relitigate the question of admissibility, again effectively holding another voir dire. I found that the fact the defendant had deliberately absconded and for a period of 24 years meant he had to suffer the consequences of his actions.
I also rule that the evidence of flight was admissible to support the prosecution’s case. I find there to be sufficient nexus between the offence and the defendant’s flight. I cured the prejudice to the defendant that was of concern, by redacting his letter to ensure the jury had no knowledge of the voir dire ruling against him.
In the early 1990s, there was a spate of armed robberies targeting gold and jewellery shops where the actual robbers were by and large, mainlanders. Those behind the robberies, it would appear, arranged those mainlanders to sneak into Hong Kong, probably with their own weapons.
The Court of Appeal, in several cases, found a starting point of 25 years’ imprisonment appropriate for an armed robbery of such shops by robbers with guns and grenades, which often preceded a shoot-out with police. I referred myself to R v Yu Lok Ting, CACC260/1992, R v Ma Lap Sun & Others, CACC678/1993 and R v Wu Ngan Hang, CACC120/1996.
In that last appeal, that appellant was in fact, the 1st defendant in this robbery trial where the Court of Appeal held the sentencing judge took a correct starting point of 25 years for a single robbery of this kind.
The facts of this case were very serious and it was fortuitous that no police officers or pedestrians were killed in the shoot-out. Not only did the robbers have guns, but also grenades. If they had escaped, they would have got away with a valuable haul of gold ornaments. In 1993, the value of the gold was over $1.25 million.
The other defendants in this case were sentence to significant periods of imprisonment. The sentencing judge took a starting point of 18 years’ imprisonment for the robbery charge, to reflect the seriousness of the facts. It would appear to be a lower starting point than other similar cases from that time period.
The 1st and 2nd defendants were sentenced to 12 years’ imprisonment for the robbery charge, after their pleas of guilty. The 3rd defendant gave evidence against the 4th defendant and as I have said, would have given evidence against the 5th defendant if he had not absconded; he also pleaded guilty. The judge found he was entitled to a 50 per cent discount for that evidence. He was sentenced to 9 years’ imprisonment for that robbery charge.
The 4th defendant was sentenced to 15 years after trial. He was found guilty by a unanimous jury. The trial judge appears to have reduced the starting point of 18 years to 15 years because she accepted that the 4th defendant was not a major instigator. He appealed to the Court of Appeal and his appeal against conviction was dismissed on 19 May 1995. The 4th defendant had abandoned his application for leave to appeal against that sentence of 15 years.
Mitigation:
The defendant is now 58 years old. He says he has been working for the last 24 years in the New Territories. However I do find it hard to believe that he could function or live a normal life for that long without detection. It is neither here nor there where he has been, and as I have said, I will not take it into account in sentencing.
The defendant had three previous gambling convictions, which resulted in fines. Effectively, he had a clear record. The defendant was educated in Hong Kong up to Primary Six level. He was married at the time of his arrest and trial but his wife divorced him some 10 years ago. He did tell the police for the purposes of his antecedent, that he had a daughter, but had lost contact with both his ex-wife and his daughter. However, I have been updated today that in fact, he has now been reunited and now in contact with his family.
Mr Boyton has suggested in mitigation that I can take into account that the defendant played a lesser role, in particular than the 4th defendant, and therefore less culpable. He submits that he should be entitled to a lower starting point.
The prosecution suggests the opposite. The prosecution suggested, during the course of the trial, that the opposite is, in fact, true and he was behind the scenes orchestrating the robbery. However, there is no direct evidence to support this suspicion.
Be that as it may, it is a joint enterprise, and in my view, he is at least as equally culpable as the 4th defendant. If there were no planners or people behind the scenes, then there would have been less serious robberies of that kind during that time period. The fact the defendant did not play a part in the actual robbery at the scene, is not good mitigation.
I take the view that if there had been no introductions made by the defendant, then it is unlikely that this plan would have come together and the robbery committed. These are factors I can take into account in finding the defendant as culpable as the 4th defendant.
I am not satisfied he did not know that this would be an armed robbery when I consider that he admitted in his record-of-interview he was present or attended four meetings with the 4th defendant and another prior to the robbery.
Defendant, please stand up. After careful consideration of mitigation put forward and the facts of this offence, I sentence the defendant to a period of 15 years’ imprisonment. I do not see any other mitigating factors that allow me to depart from that starting point, so the defendant is sentenced to a total of 15 years’ imprisonment.
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