CHOW LIM CHI v. R.

1993, No. 141
(Criminal)

H E A D N O T E

Robbery - Sentence - Mo Kwong-sang guidelines and exceptional cases - Inappropriate remark of sentencing judge: proper approach thereto on appeal

IN THE COURT OF APPEAL

1993, No. 141
(Criminal)

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J U D G M E N T

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Bokhary JA (giving the judgment of the Court):

1. On March 22 last year, before Deputy Judge W. Wong and a jury, this applicant, a man in his late twenties, was convicted after trial on one count of robbery and sentenced to 12 years' imprisonment.

2. The robbery took place in late 1991. Thirteen men burst into a factory in Kwai Chung and menaced the people there with knives. They bound, gagged and blindfolded them. Then they took over 40,000 watches worth over $14 million belonging to the company which operated that factory. That did not satisfy them. They also took the personal property of the unfortunate persons whom they had bound, gagged and blindfolded.

3. As to the suggestion that the sentencing judge failed to indicate his starting point, the short answer is that he started where he ended. As he tightly pointed out, there were no mitigating circumstances. The applicant was unable to rely on a plea of guilty since, as was his right, he pleaded not guilty. Nor could he pray in aid previous good character. Although he had never done anything like this before, he had been in trouble with the law in the past. Indeed, he had been sent to prison for six months in 1989 for breach of a suspended sentence imposed on him the previous year for possession of an offensive weapon.

4. One of the grounds of appeal, if good, would have established a point of mitigation: being that the applicant's role in the robbery was a relatively minor one. But that ground is bad. He fully participated in the robbery and was rightly called to account for it in full measure.

5. The starting point taken by the judge was therefore clear. It was the 12 years' imprisonment which he imposed.

6. It is suggested that the sentence was out of line with the guidelines laid down by this Court in The Queen v. Mo Kwong-sang [1981] HKLR 610. The sentence is nothing of that kind. This was an exceptional robbery: involving an exceptionally large number of men; being exceptionally well-organized; and bagging an exceptionally rich haul. Crime must not pay. If ever that statement is to be doubted, such doubt will receive no encouragement in this Court.

7. It is said that the sentence was appropriate only to those robberies in which firearms are used. Assuming without deciding that any robbery in which a firearm was used is more serious than any other robbery in which no firearm was used, nevertheless the top end of one and the bottom end of the other would be separated by a very fine line indeed.

8. Subject to one thing, we would have no anxiety whatsoever over the sentence passed. The thing which gave us pause is that, most unfortunately and inappropriately, the judge in passing sentence saw fit to add this observation:

"Worst of all, you smear the character of the police whose duty is to detect crimes."

9. That having been said, what should we do? We are concerned to see that the sentence with which a man leaves this Court is the appropriate sentence. If we think that a sentence is appropriate, it is not for us to turn it' into an inappropriate one by forcing upon it some reduction for an inappropriate remark. Trite as it may seem to say so, it is worth repeating in this context that two wrong do not make a right.

10. An inappropriate observation by a sentencing judge may be relevant where the appellate judges, as they sometimes do, recognize that if they themselves had been passing sentence at first instance, they may well have passed a less severe sentence than the one passed: but, in recognition of the proper role of a sentencing judge at first instance, nevertheless leave the sentence undisturbed. If we were of that state of mind in this case, in other words, if we thought that we ourselves would have passed a lesser sentence, then we would not be inhibited from replacing the present sentence with that lesser sentence. The inappropriate remark of the sentencing judge would have removed that inhibition. But the short point here is that we are not of that state of mind. We are clearly of the opinion that this sentence of 12 years' imprisonment is not in any way open to the criticism that it is too severe.

11. Mr Percy for the applicant, to whom we are indebted, has with clarity and concision said everything which can be said on behalf of this applicant. But nothing can avail him in the circumstances in which he finds himself. Leave is refused and the application for leave is dismissed.