R. v. CHAN NE PAU

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J U D G M E N T

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Hon. Yang, CJ:

1. This is an application for leave to appeal against sentence.

2. The applicant was convicted on his own plea to various offences of robbery and possession of firearms. He was sentenced to different terms of imprisonment, two of which were to commence two years after the commencement of another sentence and the others to run concurrently, making a total of 20 years' imprisonment.

3. The facts, as admitted by the applicant in the Court below, are these.

4. At about 3.05 p.m. on the 17th December 1990, he, wearing a homemade bullet proof vest and carrying a pistol, went into the Chase Manhattan Bank at Ma Tau Wai Road, and brandished his pistol in front of a teller and demanded money. One of the tellers was too frightened to act as instructed, but another teller called the applicant over to him and handed him a sum of money which were in fact bank notes containing a powdery explosive device. The applicant then returned to another counter and received more money, a total of some $41,000 and US$500 in bank notes were taken.

5. In the event, the powdery explosive device was activated and many of the bank notes were destroyed and rendered unusable.

6. On the following day, i.e. the 18th, at about 3.14 p.m., the applicant entered the Hongkong & Shanghai Bank in Hung Hom, again wearing a homemade bullet proof vest. He approached a counter and knocked on the window with the butt of his pistol and demanded money. The teller had the presence of mind to immediately squat down and press the alarm. The applicant fled. When he went into the street, he boarded a taxi to go to Whampoa Gardens.

7. Upon arrival there, he entered the International Bank of Asia at about 3.30 p.m., carrying his pistol and still wearing his bullet proof vest. He demanded money from a bank staff and was given $10,020. The applicant escaped but was chased by the security guard of the Bank. The applicant fired one shot into the air, but the security guard, not being deterred, continued his chase, and the applicant was eventually arrested by the police. During the chase, the applicant took out a pistol from a bag he was carrying. The policeman, who was chasing after him, squatted down and fired once at the applicant with his service revolver. The applicant attempted to board a taxi nearby but the taxi drove off without the applicant entering it. The policeman, who was giving chase, fired again and the applicant fell onto the ground, seriously wounded by the shot. When the policeman approached the applicant and searched him, he was found to be wearing a homemade bullet proof vest and carrying four knives. Another knife was found inside his bag. The money stolen from the International Bank of Asia was recovered and the applicant was arrested.

8. The pistol, which was found in the applicant's possession, was a Smith & Wesson .38 special calibre revolver issued by the Royal Hong Kong Police. Inside chamber of the revolver was one spent cartridge case five live rounds of ammunition.

9. The judge, in passing sentence on the applicant, made the following points. He did not consider the allegation, made in mitigation that he was under pressure from his creditors to repay his debts, a sufficient mitigating factor for him to take into consideration when assessing sentence.

10. He noted that there were two bank robberies and one attempted robbery. He noted also that a pistol was used and the applicant was wearing a bullet proof vest at the time of these offences. He accepted that a shot was fired into the air but no shot was aimed at any person. Though he was wounded by the shot fired by the policeman, the trial judge did not regard his injury as in any way mitigating his offence. In the learned judge's view, the only mitigation that he could see was that of his clear record and his pleas.of guilty.

11. It is argued on behalf of the applicant this morning that the totality of the sentence of 20 years is excessive in the light of the applicant's clear record and pleas of guilty. In our view in offences of this type, very little discount could be given to the applicant for his clear record, though of course it is proper, in order to encourage pleas of guilty, that a discount should be given when an accused person pleads guilty to the offences charged. Unfortunately, the sentencing judge did not, in his Reasons for Sentence, indicate the starting point which he adopted or the exact, discounts he had given for the clear record and the pleas of guilty. Whilst a judge is not obliged to indicate the starting point, it is always helpful for him to do so: vide The Queen v Chan King-yee (1988) 2 HKLR 183, 185 H.

12. In considering this application for leave to appeal against sentence, we take into account the degree of preparation which went into the robberies and the attempted robbery, the carrying of the firearm and the multiplicity of the offences. Against that, we also take into consideration that the applicant was acting alone. The background information which was presented in the Court below indicates that the applicant is not the type of man with any kind of predisposition to violent offences of this type.

13. Having regard to the case of Kam Chun-pang, Cr. App. 504/1991, we are of the view that a starting point of 20 years of this type of robbery is appropriate. A discount of four years for a plea of guilty would not be regarded as unduly generous. We therefore allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. The totality of 20 years' imprisonment is accordingly reduced to 16 years.

14. Sentence on Count 7 is reduced from 18 to 16 years and the orders (1) that the sentence on Count 7 to commence 2 years after the commencement of sentence on Count 3, and (2) that the sentence on Count 5 to commence 2 years after the sentence on Count 3, are removed.