YEUNG KIT and Another v. R.

1994, No. 148
(Criminal)

H E A D N O T E

This case involved a gang of criminals who maintained an arsenal and who shot it out with the police when they raided the arsenal, lobbed a grenade at the officers and took a family hostage. The Court of Appeal pointed out that the sentencing judge had rightly taken a serious view of maintaining an arsenal and an even more serious view of the gang's violent reaction to the raid.

The Court issued a reminder of its powers to order loss of time (under s.83W of the Criminal Procedure Ordinance, Cap. 221) and to increase sentences (under 83I of that Ordinance).

As to cases like the present one, the Court said that the duty of the court was to pass heavy sentences and - if this kind of thing does not abate - increasingly heavy sentences.

IN THE COURT OF APPEAL

1994, No. 148
(Criminal)

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J U D G M E N T

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Bokhary JA (delivering the judgment of the Court):

1. This case involves events in a block of flats in Tsuen Wan in the small hours of the morning of December 2, 1992. To the unfortunate residents of that block of flats it must have seemed as if war had broken out. Hail after hail of gunfire shattered the calm. A grenade went off. Tear gas was fired. Until rescued, one unfortunate family was held hostage in its own home by a group of men, including one of them armed with an assault rifle.

2. The idea of a war is not far off. There were two sides. One was a gang of criminals. On the jury's verdict, that gang included these two applicants. The gang was armed to a military extent. The other side was a police raiding party spearheaded by the commando-like officers of the Special Duties Unit.

3. Arising out of all of that, these two applicants found themselves in the dock before Ryan J and a jury earlier this year.

4. The 1st applicant is a man in his late 20's, while the 2nd applicant is a man in his early 20's.

5. They were tried on an indictment containing six counts. The first four counts were against both of them, while the last two counts were against the 1st applicant alone.

6. The first four counts all concern what happened in Flat G on the 23rd floor of that block of flats. That was the arsenal which the police raided. The fifth count concerns what is supposed to have happened in Flat G on the 25th floor. And the sixth count concerns what happened in Flat E on the 27th floor.

7. As to the offences charged, they were these.

8. The first count was of possession of arms and ammunition - being an assault rifle, four pistols, eight grenades and 176 rounds of ammunition - without a licence.

9. The second count was of use of arms and ammunition - being the rifle, three of the pistols and one of the grenades - to resist lawful arrest.

10. The third count was of possession of arms and ammunition - being the rifle, the four pistols, the eight grenades and the 176 rounds of ammunition - with intent to endanger life.

11. The fourth count was of use of ammunition - being one of the grenades - to resist lawful arrest.

12. The fifth count was of discharging a firearm - being one of the pistols - with reckless disregard for the safety of others.

13. And the sixth count was of unlawful imprisonment: hostage-taking, in other words.

14. Mercifully, the hostages were rescued unharmed. Indeed, the police managed to preserve all the members of the public from harm. But that was achieved at a price to themselves. Several police officers were injured. One of them lost an eye.

15. On March 15 this year, the jury convicted. They convicted the 1st applicant on all six counts against him; and they convicted the 2nd applicant on all four counts against him.

16. Sentence was passed on the 22nd of that month. The 1st applicant drew a total of 23 years' imprisonment, while the 2nd applicant drew a total of 19 years' imprisonment.

17. The 23-year sentence passed on the 1st applicant was made up of concurrent terms of eight years, 21 years, 21 years, 21 years and three years on the first to fifth counts respectively plus two years consecutive on the sixth count, which count also carried four years concurrent.

18. The 19-year sentence passed on the 2nd applicant was made up of concurrent terms of eight years, 19 years, 19 years and 19 years on the first to fourth counts respectively.

19. As can be seen, the sentencing judge rightly took a serious view of maintaining an arsenal. Also rightly, he took an even more serious view of shooting it out with the police when they raided that arsenal, lobbing a grenade at the police, and taking members of the public as hostages.

20. The 1st applicant seeks leave to appeal against conviction and, out of time, sentence. The 2nd applicant pursues only his application for leave to appeal against sentence.

21. As to conviction, the only viable complaint that can be made is that the conviction on the fifth count, on which the judge almost directed the jury to acquit, cannot be supported. Indeed, the prosecution does not seek to support it. We give leave to appeal against that conviction; and we quash it. We refuse leave to appeal against any of the other convictions. They were amply supported by admissible evidence; and they were reached upon proper directions.

22. The sentence for the conviction which we have quashed was made concurrent. Neither directly nor indirectly did it affect the total sentence of 23 years passed on the 1st applicant.

23. Turning to the applications for leave to appeal against sentence, there is not much more that we have to say. Very broadly, we have indicated what each of these two men did and how the judge sentenced them for what they did.

24. The only thing left to say about their respective roles is this. After fighting his way out of the arsenal, the 1st applicant ended up on another floor where he was involved in hostage-taking until the police rescued the hostages and captured him. The 2nd applicant, after fighting his way out of the arsenal, ended up in a meter room where he was captured.

25. They have both been in trouble with the law before. But their previous troubles with the law pale into insignificance when compared with the present offences.

26. We do not think for one moment that either these sentences are too severe. We wonder whether they are severe enough.

27. Perhaps it is just as well to remind others - and to remind ourselves - that this Court has power under section 83W of the Criminal Procedure Ordinance, Cap.221, to direct that the time which an appellant is in custody pending the determination of his appeal shall not be reckoned as part of the term of his sentence. And there is power under section 83I of that Ordinance to increase a sentence. But in all the circumstances, we are not minded on this occasion to exercise either of those powers.

28. Lest it be misunderstood, we should say that we are not unaware that whatever these applicants have done, they are still human beings, and terms of imprisonment like these are dreadfully long ones. From the 2nd applicant, for example, we have heard a mitigation which might have carried some weight if he stood convicted of offences less serious than these.

29. It is not that the courts do not show mercy in these cases. No court would like to be thought of as being merciless. The point is this: with offences of this seriousness, whatever mercy the court wishes to show, its duty to the public is clear. It is to pass heavy sentences and - if this kind of thing does not abate - increasingly heavy sentences.