THE QUEEN v. TSANG HIN NANG

1986 No. 558

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 558 OF 1986

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JUDGMENT

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Barnes, J. :

1. The Applicant originally pleaded not guilty to 8 counts in the indictment. During the course of the trial he pleaded guilty to Counts 5, 7 and 8, and the Crown offered no evidence in respect of the other counts. Count 5 alleged an offence of robbery at Dundas Street in which a shotgun was stolen together with cash and cheques amounting to almost $2M. That offence was committed on 11^th June 1985.

2. Count 7 alleged a robbery of an individual in which jewellery was stolen in September 1985 and Count 8 alleged the robbery of another individual in which jewellery was also stolen on the same day.

3. The Applicant was known to and friendly with the perpetuators of the renowned Time Watch robbery, and he gave some of them shelter after the commission of that offence. As a result, he became involved in a plan with some of them to commit the Dundas Street robbery. The part he played was to make a reconnaissance of the area where the robbery was to be committed, and a study of the cash transit van which was to be the subject of the robbery. He also assisted in the stealing of a motor-vehicle which was planned to be used as the get away vehicle after the offence was committed.

4. The robbery was committed by men who were armed with guns. A shot gun was stolen from one of the security guards, and a security guard was injured as the result of a shot being fired by one of the robbers during the course of the robbery. The Applicant, however, was not present at the time the robbery took place, but he did receive $200,000 from the money stolen as his reward for the assistance which he gave towards the commission of the offence.

5. The 2 other counts to which he pleaded guilty were robberies in which individuals were to, use Mr. Rodway's word, "Shanghaied" from motor-vehicles, taken to the New Territories, tied up and robbed.

6. After the commission of these offences, one of the accomplices of the Applicant died and, as a result of his death, the Applicant phoned the police and gave information which was partly instrumental in two of his accomplices being arrested. He himself, on his own arrest, gave information which led to the recovery of a firearm which had been used in one of robberies - the Time Watch robbery.

7. The Trial Judge in sentencing the Applicant knew that he was at that time already serving a sentence. He had been previously convicted of manslaughter and was sentenced to 3 years' imprisonment, and for possession of arms and was sentenced to imprisonment for 5 years. Those two sentences were ordered to run consecutively giving a total of 8 years.

8. On count number 5 in this indictment, the Trial Judge sentenced the Applicant to imprisonment for 10 years, and on the other two robberies sentenced him to imprisonment for 6 years each. He ordered that the sentence on Count 5 run consecutively to the sentences the Applicant was already serving, and ordered that the sentences on the other two robberies be served concurrently with each other but cumulative with all other sentences. The total effective sentence imposed by the Trial Judge for the 3 counts with which we are concerned was therefore 16 years. These, taken together with the sentences which had been previously imposed meant that the Applicant was facing a total term of imprisonment of 24 years. At the time of his conviction and sentence in respect of these offences, he had one previous conviction for wounding. That conviction was on the 20th May 1983.

9. In his application for leave to appeal against sentence Mr. Rodway, Q.C. for the Applicant relies on two main grounds. (He does not seek leave to appeal against the individual sentences imposed in respect of Counts 7 and 8). He submits that a starting sentence of imprisonment of 15 years on count 5 was too high having regard to the minor role of the Applicant and also to the sentences passed upon others concerned in the robbery.

10. His other ground of appeal is that the totality of the sentences imposed is excessive in the circumstances. His submission in support of this ground really has two limbs. On the one hand he says that the total of 24 years which the Applicant has had effecitvely imposed on him reflects an opinion that after trial the Applicant should have been sentenced to 32 years, an excessive period. The other limb is that since these offences form part of a series - and the Trial Judge accepted that they did - the Trial Judge should have looked at the sentences which had been imposed on other people convicted of offences in the same series. He submitted that, when one looks at the sentences imposed on others who were guilty of far more culpable behaviour than the Applicant, and the total of 24 years effectively imposed on the Applicant, one cannot see that Justice has been seen to be done as regards this Applicant.

11. It is our view that the individual sentences which have been imposed in respect of the 3 counts in this case are proper sentences, and could not be interferred with as individual sentences standing alone. We do, however, think that there is substance in the totality argument. Mr. Rodway has pointed to one particular case where an accomplice of the Applicant, guilty of far more culpable behaviour than the Applicant, received sentences which totalled only about one year more than the effective sentence passed on this Applicant. We also think that an overall sentence of 24 years in respect of this Applicant in the circumstances .of the case is excessive. We think that the Trial Judge ought to have borne in mind the other sentences imposed in the series and the circumstances which led to the imposition of those sentences, and ought not to have ignored them altogether. We think that the learned Judge should have looked at them so as to ensure, as far as he could, that Justice would be seen to be done so far as this Applicant was concerned.

12. Having taken that view we have looked at the question: what was the proper totality of sentences which should have been imposed on this Applicant? We have come to the view that in all the circumstances, the total effective period should have been 20 years. With that in mind we, therefore, propose to quash the sentences imposed and substitute other sentences. But we stress that this is being done not because we think each any of the individual terms was wrong but in order to make the totality 20 years which we think to be the appropriate overall period. We, therefore, grant leave to appeal, treat this application as his appeal, quash the sentences on each count and substitute therefor the following sentences.

13. On Count 5, imprisonment for 8 years; on Count 7 imprisonment for 4 years; and on Count 8, imprisonment for 4 years. The orders will follow the same form as the Judge's, namely, that the sentence on Count 5 will run consecutively to all other sentences; the sentences on Count 7 and 8 will run concurrently with each other but consecutive to all other sentences.