HKSAR v. CHAN WAN CHEUNG AND ANOTHER

CACC 439/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 439 OF 2006

(ON APPEAL FROM HCCC NO. 59 of 2005)

____________________

____________________

______________________________

JUDGMENT
AND
REASONS FOR JUDGMENT

______________________________

Stuart-Moore, VP (giving the judgment of the Court):

Background and facts

1.  On 31 October 2005, the applicants (D1 and D3 respectively) pleaded guilty (together with Tong Wai-ping (D2)) before V Bokhary J to a count of attempted robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200.  On 13 October 2006, almost a year later, D1 was sentenced to 13 years’ imprisonment and D3 received a 12-year sentence after the judge had adopted a 15-year starting pont.  Another defendant, Tong Wai-ping (D2), received a 10-year sentence about which no complaint has been made..

2.  D1 and D3 each sought leave to appeal against sentence.

3.  At the conclusion of the hearing on 30 August 2007, we dismissed D1’s application and made a 3-month ‘loss of time’ order in his case.  We reserved judgment in D3’s case. We now give our reasons for dismissing D1’s application and give judgment in D3’s case.

4.  The principal grounds of appeal relate to the judge’s approach to her decision that each of the applicants had knowledge that a firearm would be used in the attempt to carry out a robbery.  At D1’s request, a Newton inquiry was held when D1 gave evidence on this issue.

5.  The offence took place on 25 October 2004 in broad daylight at Kimberley Road, Tsimshatsui.  Yau (PW2) was the driver of a goods vehicle doing a delivery round with two workmen (PW3 and PW4).  The vehicle contained electronic components worth about $11.2 million and, at 10.41 am, PW2 parked outside 65-67 Kimberley Road.  He then got out of the vehicle to oversee the unloading of goods by PW3 and PW4.

6.  Meanwhile, acting on information, police observed a car driven by D1 stopping at a parking space opposite the goods vehicle.  At about 10.44 am, D2 and D3, each wearing a cap, sunglasses and a surgical mask, got out of the car and went across the road.  D2 grabbed PW2 by the neck and pointed a gun at his head and D2 and D3 demanded the keys to the goods vehicle.  At that moment, police ran forward and D2 was subdued at gunpoint.  D3 tried to escape by running back to the car where D1 was waiting but he was arrested before he was able to open the door.  Two shots were fired by the police to impede his escape.  D1 then tried to drive away but he was prevented from doing so when a police van intercepted it by colliding head on with the car.

7.  Later, a search of D1’s pockets led to the discovery of a piece of paper with the number plate of PW2’s goods vehicle written on it.

8.  The pistol carried by D2 was in working order and had one round of live ammunition in the chamber and four more were contained in the magazine.  In a pocket of D2’s jacket, he had a second magazine loaded with six rounds of ammunition which were suitable for use in the pistol.

9.  A search of D3 at the scene revealed a walkie-talkie radio in his shirt pocket.  This was to enable him to keep in contact with D1.  He admitted that he had been caught red-handed and he named D1, who he called ‘Ah B’, as the person who had asked him to drive the goods vehicle away.

10.  When the getaway car, which bore false plates, was examined, caps, surgical masks, gloves, radio scanners and five different pairs of car licence plates were found inside it.  In the foot-well of the front passenger seat, police found one unloaded pistol and one loaded pistol containing ten rounds of ammunition.  Both of these pistols were in working order and, together with the ammunition, were the subject of a 3^rd count on the indictment against D1, D2 and D3.  However, following their pleas of guilty to the 1^st count, the prosecution did not proceed with the 3^rd count against any of them and that count was left on the file.

11.  In subsequent interviews, D1 and D3 admitted their involvement in the attempted robbery.  However, D1 refused to answer any questions in relation to the firearm used in the offence.  D3, for his part (at counter 191 in his 2^nd interview), said: “I knew what this is about.  But I knew nothing at all about guns or what … (counter 193) I didn’t see that either …… (counter 195) I knew that I was to sell the goods in this vehicle …”

The ‘Newton’ inquiry

12.  Any ambiguity in D3’s reference to guns was dealt with at and before the Newton hearing.  This was rendered necessary after Mr Alan Hoo SC, then acting for D1, said that the question in issue, which he based upon the agreed wording in the Summary of Facts, was “when did [D1] know about [D2] … using at least one pistol being involved”.  Mr Hoo went on to submit that it was also a point in his favour that the prosecution had not proceeded against D1 on the 3^rd count of possessing the 2 pistols and 10 rounds of ammunition without a licence.  It is, however, to be noted that the prosecution also decided, following pleas of guilty from all those charged to the 1^st count, not to proceed against D2 or D3 on count 3 despite the fact that D2 had taken full responsibility for acquiring all the firearms.  This last point was, therefore, entirely neutral and all that can be said about it is that at least it has not been repeated in these proceedings.  We might add that there was no need for the 3^rd count as the possession of the two guns found in the car was part and parcel of the overall facts relating to the crime in the 1^st count.

13.  The Newton hearing which had been requested by D1’s counsel on 31 October 2005, was conducted before the same judge nearly a year later.  The issue remained the same, with the question of D1’s knowledge that a firearm would be used in the commission of this offence requiring determination.  Mr Loftus, who appeared in the court below for D3 as well as in these proceedings, had not requested a Newton hearing.  He had, however, made plain to the judge on 31 October 2005, that a similar issue arose with D3. Furthermore, in cross-examination of D1 during the Newton inquiry, Mr Loftus again gave a clear impression that the same point being made for D1 applied also to D3 despite maintaining that a Newton hearing was not required in his case.  For this reason, D3 did not give evidence.

14.  When making a ruling on the Newton inquiry four days later, on 9 October 2006, the judge indicated that, although D3 had not sought a hearing, “any reasonable doubt on the matter [raised in evidence by D1] would have to be resolved in [D3’s] favour as well as in favour of [D1]”.  The judge ruled as follows:

“… Having listened to the evidence and submissions with care, and having given careful consideration to all the circumstances of this case, I am satisfied beyond reasonable doubt that the only reasonable inference is that the robbery attempted was a carefully planned one and that all three accused knew full well that at least one firearm would be used to obtain the keys to the goods vehicle and to overcome or prevent any resistance from the goods vehicle driver and the transportation workers. Having observed and listened to the 1^st accused in the witness-box, I do not accept his evidence and do not find it a source of any reasonable doubt in his own or the 3^rd accused’s favour.

12.     In the result, I find proved beyond reasonable doubt and therefore determine that the 1^st and 3^rd accused knew full well that at least one firearm would be used to obtain the keys to the goods vehicle and to overcome or prevent any resistance from the goods vehicle driver and the transportation workers.” (Appeal bundle p.66)

Grounds of appeal

15.  For D1, Mr McGowan, advanced four grounds of appeal when submitting that a sentence of 13 years’ imprisonment was manifestly excessive.  The first ground was that in the absence of evidence to the contrary, “the prosecutor erred in insisting that the attempted robbery was a joint enterprise in which it was intended that firearms were to be used”.  His other grounds were that the judge had erred in the ruling she made at the conclusion of the Newton hearing, that the judge had failed to give a discount for ‘entrapment’ and that an insufficient discount was given for D1’s guilty plea.

16.  On D3’s behalf, it was submitted that the judge was wrong to have declined to give D3 the full one-third discount following his guilty plea, bearing in mind that he had not requested a Newton hearing, and that the judge “had based her 2-year reduction in D3’s sentence on her erroneous finding that [D3] did not accept that he was knowingly attempting an armed robbery”.  Mr Loftus, in drafting this second ground, had plainly failed to appreciate that D3 was given a 3-year discount to distinguish his position from that of D1.  He argued, however, that the circumstances had not given rise to any proper basis for reducing the discount and that there was no justification for the judge having said that “the remorse normally attributed to a guilty plea was not present in full measure”.

(1)     Knowledge that a firearm was to be used in the commission of the offence

17.  We shall deal first with the two grounds in the case of D1 which amounted to a complaint that there was insufficient evidence to prove D1’s knowledge that a firearm was going to be used to carry out the robbery which was attempted.  These grounds also had a bearing on the arguments raised by D3.

18.  Before the Summary of Facts was agreed, Mr Hoo, for D1, indicated in the court below that D1 had no knowledge that a firearm was going to be used and that D2 was “on a frolic of his own”.  D2’s counsel, Mr McNamara, then addressed the judge, accepting that D2 had full responsibility for all the firearms.  Mr Loftus was then asked what his position was.  His stance was effectively to adopt the same position which had been outlined on behalf of D1.  He told the judge:

“A similar situation, my Lady. My instructions are that it was shortly before getting out of the vehicle there was mention made of a gun in terms as Mr McNamara [for D2] said, and the first time [D3] saw a gun was when they were out of the vehicle in the hands of [D2]. His whole role - that is [D3’s] whole role in this enterprise was to be the driver of the hijacked vehicle. He had no knowledge that guns were going to be used, notwithstanding there had been a reconnaissance the night before.” (Appeal bundle p.78) (Emphasis added.)

Mr Loftus indicated that while he would not be seeking a Newton inquiry, he would rely on mitigation to the effect that D3 had only heard a mention about a gun shortly before getting out of the car.

19.  On any view, what was being said on behalf of D1 and D3 was, if accepted, inevitably going to make a material difference to their sentencing.  Without needing to recite long passages from the transcript, it was effectively being suggested on behalf of both D1 and D3 that the robbery, as far as they knew, involved the snatching of the driver’s keys in the contemplation that some violence might be necessary in the event that the keys had to be taken away from the driver.  Either as a robbery or as an attempted robbery without the use of any weapons in the circumstances of a case such as this, we consider that the circumstances being put forward would have called for a starting point of no more than 7 years reduced by a third to 4 years and 8 months for the pleas of guilty.  On any view, the difference in sentence between the two factual scenarios presented to the court below was likely to be enormous.

20.  Prosecuting counsel, at that stage Mr Arthur, was asked by the judge for an indication of his view on the matters raised by the defence.  He informed the judge that the defence submissions for D1 and D3 were not accepted.  It was, he submitted, a joint enterprise to commit the robbery with a gun and, pointing to the obvious, he went on to say: “This was not going to be a robbery with bare hands.”

21.  When the Newton inquiry proceeded, D1 gave evidence that he had recruited D2 and D3 for this offence.  He sat in the driver’s seat, D3 occupied the front passenger seat and, moreover, D2 was in the back of the car.  In the course of the journey, D2, who was holding a bag, said that he would give D3 a gun.  According to D1, he said: “We don’t need to use those things … I did not say that guns would be used”.  D1 then asked D2 not to give a gun to D3 and, moreover, D2 agreed not to use one himself.  D1 also said that he told D2 to put the bag he was holding in the front of the car.  D2 complied by passing the bag to D1 who then put it under the passenger seat where D3 was sitting.

22.  In the cross-examination of D1, Mr Loftus suggested, and D1 accepted, that D3 had only been recruited on the day before the offence.  There was then the following dialogue:

“[Mr Loftus]  He was certainly, I suggest to you, Mr Chan [D1], never told anything about guns by you at all.

[D1]  Correct.

[Mr Loftus]  When guns were mentioned at or near the Stanford Hotel by [D2], he [D3] was adamant that he would not take part in using a gun.

[D1]  Correct.

[Mr Loftus]  Going on to say he [D3] didn’t even know how to use a gun.

[D1]  Correct.

[Mr Loftus]  And that he [D3] was only there to assist in driving away the vehicle.

[D1]  Correct.” (Emphasis added.) (Appeal bundle p. 51)

23.  Later, in cross-examination by counsel then prosecuting, Mr Bell, D1 described what was, in effect, a conspiracy to steal when D1 said: “If the driver alighted from the vehicle and there is a car key there, they should jump aboard and drive the vehicle away”.  However, he went on to agree that some violence was contemplated.

24.  In the light of the evidence heard by the judge, which we have been able to examine in its full detail from the transcript, we are in no doubt that the conclusion reached by the judge was in all respects inevitable.  The inference that D1 and D3 were aware that a gun would be carried in this well planned robbery was overwhelming.  There was no other sensible conclusion.

25.  It is abundantly clear that Mr Loftus had firmly implanted in the judge’s mind as well as both prosecuting counsel from his earlier statement (see paragraph 18 above) that D3 “had no knowledge that guns were going to be used” and the suggestion to D1 in cross-examination that D3 was “adamant that he would not take part in using a gun”, that he was seeking to adopt a similar stance to the case presented for D1.  This obviously provided a basis on which D3 could also have expected to receive a greatly reduced sentence if the judge was persuaded by it.  As matters stood, it was, however, quite rightly rejected.  No doubt, as a tactical ploy, Mr Loftus had hoped that D3 would not be denied any credit if it was made plain that D3 was not asking for a Newton hearing.  Nevertheless, the judge was equally entitled on Mr Loftus’ presentation of his case to conclude that D3 was attempting to gain from D1’s evidence and it is particularly significant, in this respect, that far from distancing himself from D1’s evidence, D3’s counsel had specifically sought to use D1’s evidence to D3’s advantage.  In such circumstances, the judge was, in our view, fully justified in reducing D3’s discount.  However, we shall say more about this later as it is now plain that Mr Loftus had misrepresented the instructions he had been given by placing before the judge a false picture concerning D3’s knowledge about the use of a firearm in the commission of the offence.

(2)     Entrapment

26.  D1’s complaint that the judge failed to reduce the sentence on account of entrapment was without substance.  The judge found that there was “no evidence of a real possibility that there was any encouragement, whether orchestrated by the police or not, without which any of the accused would not have committed the offence”.  Not only was there no evidence whatever to suggest entrapment but D1’s replies to the police also give a clear indication, if anything further was needed, that there was no element of entrapment in this case.  The fact that the police had plainly received a tip-off so that they were ready to go into action does not suggest, of itself, entrapment.  As this court in HKSAR v Kai Chi-chung and Anor, CACC 259/1997 said in the penultimate paragraph:

“… an appellate court must be careful that it does nothing which would discourage the police from setting legitimate traps to apprehend offenders who are inten[t] upon committing offences.”

27.  In Secretary for Justice v Musa [2001] 1 HKC 14 at 23, this court also said:

“… The mere fact that [entrapment] was mentioned in mitigation obviously does not give rise to an automatic requirement to give a discount unless the entrapment provides mitigation along well defined lines …”

This court went on (at page 24) to crystallise the issue by saying that “a legitimate trap is not to be equated with entrapment”.

(3)     Reduced discounts

28.  In regard to D1 and D3’s ground of appeal, which criticises the judge for her failure to give them a full one-third discount, the judge expressed her reasons in the clearest terms when stating that:

“… their discounts will be diminished by the fact that, contrary to the truth as I have found it to be, they did not accept that they were knowingly attempting an armed robbery. That the robbery attempted involved the use of a firearm was a fundamental feature, if not the fundamental feature, of the case. … By not accepting that they were knowingly attempting an armed robbery, the 1st and 3rd accused displayed far less remorse than would be evident from a plea that accepted that fact.” (Appeal bundle p. 26)

29.  So far as D1 is concerned, this ground was without substance. This court, in HKSAR v Tong Kim-ching, CACC 481/2001 (at paragraph 7) stated that it was “too well established to require a recitation of authorities that a challenge to the facts, if unsuccessful, may, depending on the circumstances, place a defendant in a position less advantageous than had he pleaded guilty and accepted the true facts of the case”.  In the present case, that was exactly the position, both D1 and D3 knowing full well that, if their attempt to deceive the court into believing that they had no knowledge that a firearm would be used to commit the robbery, their sentences would be significantly reduced, probably by more than half.  No longer would they then become liable to be sentenced for an attempted robbery involving the use of a firearm.  Instead, or so they hoped, they would be sentenced, as we indicated earlier, on an entirely different footing, with the judge treating this as an attempted robbery where some form of violence was contemplated without the use of any weapons.

30.  In our view, the judge was correct to have decided to make a heavily reduced discount normally accorded to those who plead guilty.  D1 had deliberately attempted to mislead the court below.  He took a major gamble and lost.  His remorse was superficial, if not non-existent, and he must now take the consequences of engaging in a tactic which has backfired on him.  The suggestion made by Mr McGowan that D1’s discount of just over 13 percent was insufficient, in the circumstances of the present case, was without merit.  The extent of the discount was in the discretion of the judge and we have been provided with no good reason to interfere with her decision.  Furthermore, Mr McGowan’s suggestion that discounts of below 20 percent were, at least as far as he knew, unheard of in situations such as this is not borne out (see, for example: HKSAR v Yan Siru [2004] 3 HKLRD 348 and HKSAR v Lee Chiu-pang [1995] 2 HKC 523).

31.  We turn now to the reduced discount given to D3 which, on the position Mr Loftus had outlined to the judge was, as we have indicated already (see: paragraph 25 above) fully justified.

32.  However, in these proceedings, Mr Loftus submitted that it might well be, through his own fault, that he had caused the judge to misunderstand the basis of D3’s guilty plea.  Mr Loftus then tried to justify his original statement to the judge that D3 “had no knowledge that guns were going to be used” (see: paragraph 18 above).  He referred also to his question in the cross-examination of D1 (at paragraph 22 above) that “when guns were mentioned at or near the Stanford Hotel by [D2], he [D3] was adamant that he would not take part in using a gun”, by saying that this was supposed to indicate to the judge that D3 was not himself going to use a firearm.  Mr Loftus said that he believed it had been made clear to the judge that it was not disputed that D3 knew that a gun would be used from the fact that D3 had pleaded guilty and had not asked for a Newton inquiry.

33.  The matter was then gone into at length.  Mr Loftus’ explanation, which we have reviewed once more from the transcript of the morning’s hearing before us, was far from satisfactory. So much so, that we had to make a request to see the written instructions he had been given, subject to D3 agreeing to waive his privilege, so that we could decide for ourselves the case which Mr Loftus had been instructed to present on this crucial issue to sentence.  It is as well that we did so.

34.  When the hearing resumed in the afternoon, it emerged that D3’s written instructions and Mr Loftus’ notebooks in which notes of any conferences with D3 would have been recorded had for some unknown reason not been retained in the case file kept by the Department of Legal Aid.  We were, however, presented with a two-page typed document which we were told by Mr Loftus was sent to him on 27 March 2006 by his instructing solicitors.  It is headed “clarification of D3’s cautioned statement”.  In the final paragraph, the solicitors had written:

“In short D3 (client) did not know about the involvement of the guns in this case until 2-3 minutes prior to the robbery …”

35.  On this basis, Mr Loftus can be understood to have had instructions, albeit in somewhat ambiguous terms, that D3 knew that guns were involved in the crime on which he was embarking.  This is what Mr Loftus had been telling us in these proceedings but it is not what he told the judge in the court below.

36.  We put aside altogether the improbability of the instructions given to Mr Loftus that D3 had only realised a gun would be involved in the crime a few minutes before he jumped out of the car on this well planned robbery.  That is beside the point.  With instructions by the time of the Newton inquiry that D3 was admitting involvement in an armed robbery, all that Mr Loftus had to do was to make it clear to the judge that his case was different to the case presented by Mr Hoo on D1’s behalf.  If he had done so, he would doubtless have received the same full discount that D2 was given and these proceedings would not have been necessary.  But Mr Loftus chose, quite specifically, not to do so.  He tried instead to get the best of both worlds.  If D1 succeeded in the Newton inquiry, and if D3’s case was presented, as it was, on a similar basis, D3 would also have benefited from this.  On the other hand, if it failed, Mr Loftus hoped that by not having requested a Newton inquiry, he would still be able to maintain D3’s full discount.

37.  It is a cardinal rule of advocacy on the part of counsel and solicitors in our courts that a case should be presented with complete candour.  Here, the rule was broken in a fashion which is to be deprecated. Mr Loftus never corrected the impression he had given that D3 was unaware that guns would be used in the offence by saying that D3 was aware that a firearm was to be used in the robbery.  His earlier statement on D3’s behalf that D3 “had no knowledge that guns were going to be used” was never retracted and nothing said at the Newton hearing did anything to correct this false impression.  On the contrary, what Mr Loftus said at that hearing effectively confirmed the stance he had earlier taken.  The importance of the issue was plain for all to see and we are dismayed at Mr Loftus’ conduct.  It was not for him to adopt a course which was contrary to his instructions merely because D1, who was putting forward a different story, would have benefited if leading counsel on his behalf had managed to succeed in persuading the judge that D1’s account was true.

38.  This case has provided a sad insight into what may happen when counsel departs from his instructions and it has left D3, as matters have turned out, worse off than if his case had been presented with complete candour.  Obviously, now that the true position has been established, we cannot, as Ms Sin for the respondent agreed, allow a sentence to stand which is longer than it should be when it was Mr Loftus’ own irregular conduct which led to this in the first place.  As we have said, if the judge had realised the true position, she would doubtless have given D3 the same discount as D2 and it now falls to us to correct the position or D3 would be additionally punished when the fault lay with his counsel.

Conclusion

39.  In our view, the sentence for D1 was not a day too long.  No criticism was made of the starting point of 15 years’ imprisonment taken by the judge (see: HKSAR v Kai Chi-chung and Anor, CACC 259/1997).  Those who embark on gun-crimes in Hong Kong can expect to receive very severe sentences.

40.  Accordingly, D1’s application was dismissed.

41.  In the unhappy and unsatisfactory circumstances which have arisen in D3’s case, leave must be given to him.  Treating the hearing of the application as the appeal, we shall allow D3’s appeal and reduce his sentence to 10 years’ imprisonment.

Loss of Time

42.  It should not be thought by those serving relatively lengthy sentences that, for this reason, orders for loss of time will never be considered.  There were no arguable grounds in D1’s case so that his application was devoid of merit.

43.  In our opinion, this was a proper case in which to consider our powers under section 83W of the Criminal Procedure Ordinance, Cap. 221.  Having heard counsel for D1 on this topic, we were satisfied that in this case it was appropriate to order that 3 months of the time D1 has spent in custody pending the hearing would not count towards the sentence he is presently serving.

Commendations

44.  The team of police officers involved in this case, all of whom were attached to the Criminal Intelligence Bureau are to be commended for successfully bringing to justice this armed gang of robbers.  D1 had recruited two men who provided the necessary expertise to hijack a vehicle containing a valuable cargo of electrical goods from a busy street in Tsimshatsui.  In order to achieve their purpose, firearms were necessary.  One pistol was taken by D2 to effect the robbery.  No doubt the other handguns left in the car were to provide back-up in the event that the stolen vehicle which it was intended should be driven by D3 and the getaway car to be driven by D1 were pursued.

45.  Fortunately, the police had received information about what was likely to happen, including the fact that the gang was probably equipped with firearms.  It is entirely due to the professionalism of the operation, and the particular bravery of some of the officers engaged upon it, that the whole gang was rounded up.  Furthermore, despite the obvious danger posed by the situation which had developed, no one was hurt in the process.

46.  When D2 held a firearm at the victim driver’s head, Police Constable 50281 Ng Chi-ming and Police Constable 54592 Ho Kwok-wai, both of whom were armed, immediately ran forward, regardless of their own safety.  They confronted the gunman whose pistol, as it turned out, was loaded with five rounds of live ammunition.  So effective were their actions that D2 dropped the pistol he was holding.  These two officers are due high praise for their conspicuous courage in the face of very real danger.

47.  Other officers who acted with commendable courage were Station Sergeant Wong Chor-yuen (then Sergeant 17224) and Police Constable 53971 Lam Cheung-luk who chased after and arrested D3 who was also at that time believed to be armed with a handgun; and Police Constable 58150 Law Loi-ping who drove the van which intercepted D1’s vehicle as D1 tried to drive away.

48.  We have been made aware that these officers, and others in the team as well, have already received internal police commendations in varying degrees.  However, the public owes a debt of gratitude towards such officers as these who provide an outstanding example of the courage and professionalism to be found in the Police Force.  The least that this court can do is to make an open expression of that gratitude on behalf of the community at large.

49.  A copy of this judgment should be sent to the Commissioner of the Hong Kong Police Force and we would ask counsel for the respondent to ensure that this is done.