THE QUEEN v. WONG LAM CHOI

BETWEEN

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant pleaded guilty before Deputy Judge Daniell to three counts of robbery and was sentenced to nine years' imprisonment on each count, such sentences to be served concurrently. He now seeks leave to appeal against sentence.

2. The facts relating to the first count were that in pursuance of a prearranged plan the applicant and another man drove a goods van to the rear of the Earlboro Restaurant on the 28th December 1987 at around 6.45 a.m. Three confederates then arrived. Knives were distributed to two of them and walkie-talkies were handed to the applicant and another member of the group. When some customers were entering the restaurant three of the group rushed inside, threatened the occupants with knives and forced them to open a safe. The applicant remained outside in a van as lookout and getaway driver. $7,000 were taken from the safe. One of the customers was seized and threatened, and a golden necklace was taken from her. The robbers then fled and the proceeds were divided between them.

3. As to the second count the facts were that in early January 1988 the applicant and two of his confederates in the earlier robbery met and agreed to commit a robbery at the Sang Ngai Hong, Jade Factory. The other two robbers on the earlier robbery were later engaged to give assistance. At midnight on the 13th of that month, the applicant and, two of his accomplices reconnoitred the factory and arranged to carry out the robbery three days later. In pursuance of this arrangement the applicant and three accomplices waited in a side street near the factory at around 11.45 a.m. until the third accomplice arrived. The robbery was abandoned however when the third man told the waiting robbers that there were too many workers in the factory. It was rescheduled for the 18 January. On that date the robbers assembled in the vicinity of the factory shortly after 11 a.m. Two of them armed with knives and a third carrying a brief case and two rolls of adhesive tape entered the factory by waiting until a customer left the premises by opening the locked door and iron grille.

4. The occupants, three women and a man, were threatened with the knives and tied up with adhesive tape. An old man who entered during the course of robbery was also tied up. When a woman shouted "Robbery" her mouth and eyes and those of the other occupants were covered with tape. The flat was ransacked and HK$45,000 and US$2,500 and a quantity of gold and jade jeweller was stolen. The applicant again acted as lookout and getaway driver. After the robbery the proceeds were divided between the applicant and his accomplices at another location.

5. With regard to the third count the facts were that in early December 1988 the applicant and two accomplices met and discussed the commission of a robbery at the Tai Chung Jewellery Company where was known that lapis lazuli was cut and polished. The scene was reconnoitred and later on the 5th of that month two of the accomplices armed with knives prised open the iron grille to the factory and pressed the door bell. When the door was opened they rushed in and overpowered the three occupants, tied them up with electric cord and covered their heads with newspapers. They removed the lapis lazuli in sacks to a van in which the applicant was waiting as a lookout and getaway driver. They then returned to the factory, searched the trussed up victims, and stole a quantity of cash. The stones were later sold for $12,000 and the proceeds were again divided between the applicant and his two accomplices.

6. In passing sentence the deputy judge took into account the applicant's pleas of guilty, his cooperation with police and the fact that he had given evidence for the Crown at the trial of one of his accomplices. He adopted an overall starting point for sentence of 13 years imprisonment and reduced it to 9 years.

7. Mr. Chandler who appears on behalf of the applicant in this court submits that the deputy judge erred in taking thirteen years as a starting point for sentence and that he failed to give the applicant sufficient credit for his pleas of guilty, for his cooperation with the police and for having given evidence against a co-accused twice. The applicant had testified as a prosecution witness against one of his confederates but for reasons unconnected with him the trial miscarried. He then gave evidence at a second trial. On this occasion his confederate was acquitted.

8. Mr. Chandler makes the point that notwithstanding the acquittal the Crown would not have seen fit to put him forward as a witness of truth on the second occasion unless his testimony had been satisfactory at the first trial. Mr. Abbott for the Crown did not dissent from this view.

9. Mr. Chandler also complains that the judge did not relate the facts of the robbery to those factors referred to in The Queen v. MO Kwong-sang [1981] 1 HKLR 610 as being relevant to sentence in robbery cases. He further contended that a proper overall starting point for sentence was between eight and nine years and that a discount of at least one third should have been given on account of the mitigating factors.

10. These were carefully planned robberies, committed over a period of one year. Knives were displayed and the victims were overpowered, bound and gagged. Contrary to Mr. Chanadler's submission the deputy judge was not obliged to make specific reference to these matters at the time of passing sentence. However, he did in fact make mention of them. There is no substance in this criticism.

11. After anxious consideration we have come to the conclusion that the overall sentence of nine years did not give sufficient recognition to the fact that although the applicant had not been apprehended redhanded, he cooperated with the police and gave evidence twice for the prosecution. We therefore allow the application for leave to appeal against sentence and, treating the hearing as the hearing of the appeal, allow the appeal, quash the sentence of nine years imprisonment and substitute for it one of eight years imprisonment.