R. v. LAU KAM FAI and Others

IN THE COURT OF APPEAL

1994, No. 232
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. There were altogether six defendants in the trial below and 39 charges. These charges included shooting with intent to resist lawful arrest, possession of arms and ammunition without a licence, attempted murder, causing an explosion contrary to Section 53 of the Crimes Ordinance, Theft of a Police Revolver, robbery, taking a conveyance without authority, possession of arms and ammunition at the time of committing an offence, false imprisonment and handling stolen goods.

2. It is convenient to refer to these applicants in the way they were referred to in the court below. All of them seek leave to appeal against the totality of the sentences imposed on them.

3. Each of these men received various sentences of life imprisonment (inter alia).

4. D3 pleaded guilty to 10 counts. These were counts 1, 2, 6, 7, 9, 11, 12, 13, 14 and 16. They included possession of arms and ammunition without a licence, shooting with intent to resist lawful arrest, taking a conveyance without lawful authority, causing an explosion, robbery and possession of arms and ammunition at the time of committing an offence.

5. D4 pleaded guilty to counts 6, 9, 12, 13 and 14 and was convicted of counts 1, 2, 4, 7, 8, 10 and 11.

6. D5 pleaded guilty to counts 1, 2, 6, 7, 9, 11, 12, 13, 14, 16, 17 and 18 and D6 pleaded guilty to counts 1, 2, 6, 7, 9, 10, 11, 12, 13, 14, 16, 17, 19, 20, 22, 23, 24, 26, 30, 31, 33, 34, 35, 37 and 39.

7. Rather than itemising each of these charges and the particulars of the offences it is probably more satisfactory to describe in brief outline the events which gave rise to the various charges.

8. All four applicants were participants in what has been described as the shootout incident which took place on 24 April 1992.

9. At about 12.45pm on 24 April 1992, acting on information, a police party led by Superintendent OAKES raided a flat situated at 6/F, No. 26 Li Tak Street, Taikoktsui in an attempt to apprehend suspects involved in a Chow Sang Sang Goldsmith robbery which occurred on 23 April 1992. There was a metal grille and a wooden main door installed at the entrance of the premises. Detective Inspector Chan Sze-ki asked for entry after D6 had answered the door. When Detective Inspector Chan disclosed his identity, D6 immediately closed the door and retreated into the premises. Shortly afterwards, D3, D4, D5 and D6 together with a Chinese male known as Lo Shue who were all wearing bullet proof vests and armed with pistols, shotgun, assault rifle and carrying hand grenades, dashed out from the premises. D6 who was holding an assault rifle fired at the police officers. One of the police officers was injured. The police officers then took cover at various positions on different floors. An exchange of gunfire ensued when the culprits resisted apprehension and were escaping via the staircase. The police officers were forced to retreat downstairs.

10. Led by D6, the culprits reached the ground floor of No. 26 Li Tak Street. Superintendent OAKES and Detective Inspector Chan Sze-ki at that time were directing deployment of other police officers. D6 fired at various police officers with his assault rifle. Superintendent OAKES suffered a gunshot wound on his shoulder. As to Detective Inspector Chan, he lost his balance while looking for cover and fell flat at the feet of the gang outside the ground floor of No. 26 Li Tak Street. Sensing the dangerous situation, he dropped his police revolver on the ground and told them not to get excited. Then Detective Inspector Chan heard the culprits exchange words briefly among themselves. Suddenly Detective Inspector Chan felt a strong impact on his face and he was shot at close range in his head. He was also kicked by one of the culprits. None of the men were convicted of the attempted murder charge. Although Detective Inspector Chan received a very serious injury to his head he fortunately survived the attack.

11. One of the culprits then snatched or took away Detective Inspector Chan's police revolver. D6 threw a grenade in the direction of Sit Shing-shun, DPC 17457. The grenade detonated underneath a vehicle. DPC 17457 sustained minor injuries while running for cover. A pedestrian, however, had her left forearm injured by a metal fragment of the grenade, as a result of the explosion.

12. This gang of five fled along Li Tak Street towards Kok Cheung Street and from there turned right into Ivy Street. There was a public light bus ('PLB') terminus at Ivy Street. A public light bus was parked with the driver at the driver's seat. The gang hijacked the PLB and forced the driver to leave. The culprits then drove the PLB against one-way traffic along Kok Cheung Street colliding with a private car. They did not stop and continued to speed along the street. The PLB ran into a parked motorcycle, dragging it along the way. A second grenade was then thrown from the PLB which detonated outside No. 61 Kok Cheung Street. The explosion inflicted injuries to 3 passers-by and caused extensive damage to a private van parked nearby. The PLB turned into Tai Chuen Street. Meanwhile, the culprits opened fire indiscriminately and repeatedly from the PLB. One of the shots hit Cheng Chun-fai, the proprietor of Wing Fai Medicine and Cosmetics Company situated at the junction of Kok Cheung Street and Tai Chuen Street. Mr Cheng suffered a chest wound. He managed to dial 999 before he became unconscious.

13. Subsequently, the PLB collided, without stopping, into a private van at the junction of Tai Ching Street and Tai Chuen Street. When the PLB was being turned into Tai Kok Tsui Road, it further collided with another goods van near Chung Wui Street. The PLB continued to speed towards Shamshuipo area, along Tai Kok Tsui Road.

14. The culprits eventually abandoned the PLB on Tai Kok Tsui Road near Wai On Street. They then forced the driver of a taxi at gun point to abandon his taxi. The culprits boarded the taxi and fled.

15. Upon reaching Hai Tan Street, the culprits found a goods van blocking their way. A third grenade was thrown which detonated near No. 201 Hai Tan Street. The blast damaged the back windscreen of a goods van injuring 3 adults and 2 girls. Two other vehicles were also damaged. The culprits continued to drive the taxi recklessly and rammed into a private car at the junction of Hai Tan Street and Yen Chow Street.

16. At this juncture, a police vehicle carrying another party of police officers were in hot pursuit of the culprits along Yen Chow Street. While proceeding in the taxi, a fourth grenade was thrown which detonated near No 65 Yen Chow Street. The explosion caused extensive damage to a government lorry parked at the spot. Two passers-by also sustained injuries as a result of the blast.

17. The taxi continued its way and turned into Castle Peak Road heading towards Cheung Sha Wan. At the junction of Shun Ning Road and Fat Cheung Street, the culprits spotted a goods van stopping in front of a set of traffic lights. The taxi hit the rear of the goods van whose driver then saw a group of men getting off the taxi and carrying pistols. The driver was forced to leave his goods van which was hijacked by the culprits. They sped away from the scene in the direction of Caritas Medical Centre. Two civilians witnessed the culprits alighting from the goods van after it had stopped and was abandoned in the middle of the road outside No. 16 Kwong Shing Street. The culprits were seen carrying bullet proof vests and a carton box. The culprits were further seen crossing Wing Hong Street towards Caritas Medical Centre. Eventually, they were able to make good their escape

18. A total of 18 people, consisting of four police officers and fourteen civilians, were injured during the whole episode of the shootout by either gunfire or fragments from hand grenades which originated from the culprits.

19. Some of these injuries were very serious but mercifully none of them were fatal.

20. 17 motor vehicles were damaged - some quite seriously.

21. Also 3 shop premises were damaged.

22. The first 12 charges related to the shootout incident.

23. Charges 13 and 14 concerned the armed robbery which took place on 23 April 1992. All the applicants were convicted on these counts.

24. A Chow Sang Sang Jewellery Shop is situated at No. 529, Nathan Road, Yaumati, Kowloon. At about 6.50pm on 23 April 1992, when the jewellery shop was about to close for business, four to five robbers (comprising D3, D4, D5 and D6, together with Lo Shue) dashed into the shop and declared robbery. One of them was wearing a balaclava and armed with an assault rifle. The other three to four were holding pistols. The robbers threatened the staff of the shop with their firearms and ordered them to put gold ornaments, jewellery and watches into shopping bags and a carrier bag. The robbers fled with the loot in the getaway stolen car. The jewellery shop suffered a total loss of about HK$2.5 million.

25. The flat situated at room 203, 2/F, No. 31-41, Tai Lee Building, Kok Cheung Street, Tai Kok Tsui was a safe house that D6 rented in order to accommodate D3, D4, D5 and Lo Shue, who were all illegal immigrants from China before and after the Chow Sang Sang robbery. The police later raided it and found a total of 8 grenades inside the flat.

26. Charges 15 and 16 related to armed robbery and shooting on 25 February 1992 at the Chow Tai Fook Jewellery Shop. D3, D5 and D6 were convicted of these counts.

27. Chow Tai Fook Jewellery Shop is at No. 341, Nathan Road. At about 6.40pm on 25 February 1992, the shop was open for business. There were about 20 odd customers and 37 staff members inside the shop. Six robbers (including D3 and D6), four of them were armed with pistols and two with knives, rushed into the shop and declared robbery. Another culprit (D5) was armed with a shotgun and stood outside the shop acting as a lookout.

28. While the culprits were robbing the shop, two police officers patrolling nearby were alerted by passers-by, and rushed to the scene. D5 fired indiscriminately at the persons at the scene. Pellets from a stray cartridge injured the security guard of the shop and 2 civilians. All the robbers immediately fled from the shop and were able to make good their escape in a getaway vehicle. The goldsmith shop suffered a total loss of about HK$2.4 million.

29. It will probably not be of great assistance to give details of the other armed robberies which were the subject matter of these charges. Suffice it to say that of these applicants D6 was the only one to be convicted of the other robberies. He admitted taking part in altogether 9 armed robberies.

30. It will however be helpful to note how the trial judge Duffy J dealt with these offences when he passed sentences on the applicants.

31. After dealing with the facts as I have outlined them he said

" Nevertheless, words cannot adequately describe the horror and shock that was felt at the enormity of your wanton behaviour. Your participation in the earlier armed robberies, your preparedness to use your guns whenever you met resistance, your absolute disregard for the safety of the public, your resort to weapons of war to blast an escape route for yourselves through the teeming streets of Kowloon, mark you out as characters of such impaired moral and social consciousness that your return to society must be indefinitely delayed. Indeed, it is my view that this level of criminal misconduct cannot be appropriately punished by a determinate prison sentence. I believe I am supported in that view by the English Court of Appeal in the case of O'Dwyer (1988) 86 Criminal Appeal Reports 313, which was quoted with approval by the Hong Kong Court of Appeal in R v. Pang Chun Wai, Criminal Appeal No. 7 of 1992. There cannot, it seems to me, be any doubt but that the three criteria that justify the passing of a sentence of life imprisonment are here satisfied.

D6, you were undoubtedly the leader of this gang of brigands. You have pleaded guilty to 25 counts in all, which include nine armed robberies, three cases of shooting with intent, six cases of possession of arms and ammunition without a licence, four instances of throwing hand grenades in the public streets, and three cases of hijacking vehicles in the course of your escape. You were the organiser and motivator. It was you who arranged for the mainlanders to be smuggled into Hong Kong, it was you who arranged for housing them and feeding them, all for the purpose of committing robberies, and it was you who provided the weapons, including the hand grenades. Your criminality takes you far out of the reach of a finite term of imprisonment. Your pleas of guilty in such circumstances cannot avail you much. Indeed, virtually nothing said in mitigation can affect the sentence in cases of this magnitude.

So far as the rest of you are concerned, you, D3, in fits and starts, eventually pleaded guilty to 10 counts, including two armed robberies, one case of shooting with intent, two instances of throwing hand grenades, two counts of possession of arms and ammunition without a licence, and three counts of hijacking vehicles. You, D4, pleaded guilty to one count of armed robbery and one count of possession of arms and ammunition without a licence, and three counts of hijacking vehicles, as well as which you were convicted after trial of one count of possession of arms and ammunition without a licence, two counts of shooting with intent, and four counts of throwing hand grenades. And you, D5, pleaded guilty to two counts of armed robbery, two counts of shooting with intent, three counts of being in possession of arms and ammunition without a licence, two counts of throwing hand grenades, and three counts of hijacking vehicles.

You were the mainlanders brought here by your leader, FUNG Wai-hon, to carry out these armed robberies, and I have tried to rationalise a distinction between your criminality and that of your leader for the purposes of sentence. Certainly you have committed far fewer offences, and you were merely the armed muscle in FUNG's games of cops and robbers. I keep in mind too that sentences of life imprisonment should be passed only very rarely where it is not prescribed as mandatory punishment and should be reserved for a category of serious offence which qualifies as the worst case of its kind. However, it seems to me that your pleas of guilty and your convictions allow me to conclude that in all these crimes you were acting as one with FUNG, and without reaching the heights of FUNG in terms of overall criminal misconduct, your own participation in these outrages already achieves the worst case of its kind category, satisfies all three criteria in O'Dwyer, and therefore merits sentences of life imprisonment. The worst case of its kind category will of necessity include criminality at varying levels above a certain mark. Thought will no doubt be given to any differences that exist in the levels of your criminality at some future time and by another body established to decide the future of prisoners facing indeterminate sentences. I only distinguish between you where I pass determinate sentences, and I do so to reflect the number of offences committed."

32. Having regard to the facts which have been outlined it would be difficult to disagree with the view Duffy J took of these offences and the conduct of the various applicants.

33. D3, D4 and D5 are all represented by Mr Stirling and D6 is represented by Mr Haynes.

34. It is apparent from the record that Duffy J did not, as he should have done, warn counsel of his intention to pass life sentences.

35. Mr Haynes' plea of mitigation does indicate that he was fully aware of the risk of a life term being imposed.

"I say all those things because of course he's frightened to death, as a young man of 25, of receiving a life sentence, because how will he get his one-third reduction for his pleas of guilty, and what was the point of pleading guilty if the court thinks of him in terms of a life sentence, and what is there in the sentencing reservoir left if a defendant of this type receives that maximum sentence? What's left for those who plead not guilty and who have deliberately sprayed the public with AK47 bullets and so forth?"

36. The consequence of this is that we must consider the matter ourselves and make our own assessment of the situation. This we do.

37. It is a common theme of the perfected grounds of appeal which have been submitted by both counsel that serious though these offences undoubtedly were life imprisonment for these defendants was not justified as the criteria referred to in O'Dwyer (1988) 88 Criminal Appeal Report 313 and R. v. Pang Chun Wai, Cr App. 7/92 had not been met.

38. One of the criticisms was that no expert evidence in the form of a psychiatrist's report had been forthcoming in respect of these men. The absence of such a report had been the principal reason why the Court of Appeal had allowed the appeal in R. v. Pang. The court had formed the view that without psychiatric evidence it was difficult for the court to be able to be satisfied that "the applicant was of unstable character and likely to subject the community to further violent crimes in the future" which was the 2nd requirement which had to be met if a term of life imprisonment was to be imposed.

39. The question which we have to consider is whether the actions of these men are such that we are able to conclude that they are of unstable character and likely to commit similar offences in the future.

40. What needs to be borne in mind in this case are the extremely violent acts which have been perpetrated by these men and their almost total disregard for the safety of members of the public.

41. Silke JA as he then was considered the principles to be adopted at p94 of R. v. Cheung Hing-biu (1984) HKLR 87 at 94:

" He has referred us to Hodgson [1968] 52 CAR 113-applied by the Full Court in R. v. Fong Lung-fai [1968] HKLR 249-and to the commentary upon it in the 41st Edition of Archbold paragraphs 5-30; 5-31 and 5-32. He concedes that in this instant case criterion (a)-'Where the offence or offences are in themselves grave enough to require a very long sentence'-and criterion (c) 'Where if the offences are committed the consequences to others even to one other may be specially injurious, as in the case of sexual offences or crimes of violence'-are both present.

He bases his argument on the suggested absence of criterion (b): 'Where it appears from the nature of the offence or from the defendant's history that he is a person of unstable character likely to commit such offences in the future'.

Whether or not, and we think not, all three guidelines must be present before the imposition of an indeterminate sentence the very nature and multiplicity of the offences here is, in our judgment, sufficient to satisfy criterion (b); whatever may be the views of the psychiatrist as the applicant's present mental instability or personality defect.

The crimes committed by the applicant merited condign punishment. The public is entitled to be protected from the depredations of a man such as this and it is the duty of the courts in passing sentence to reflect this and also to reflect the abhorrence the community has for the nature of these offences.

If a determinate sentence were to be considered then one in the region of thirty five to forty years would be properly in contemplation. When one goes into the range of thirty years and over then an indeterminate sentence must obviously lie for consideration. When a court comes to the conclusion that life imprisonment would be proper, factors such as pleas of guilty, co-operation with the police and remorse. if it exists, have little relevance in the sentencing process. A plea does most certainly merit a discount-it saves time and expense and it avoids for witnesses the ordeal of giving public evidence-but that only where the tribunal decides upon a determinate sentence in the first place."

42. The reference at the beginning of this passage to Hodgson is of course a reference to O'Dwyer which I have referred to previously.

43. We consider that these principles are applicable to the present case.

44. Mr Haynes for D6 submitted that there had been an irregularity at the trial as Duffy J by sentencing immediately after submissions he had already decided upon the sentence he would impose before he had had the advantage of hearing submissions from counsel on mitigation. We do not consider that this submission is well founded. We have no doubt that the draft Duff J had prepared was a provisional one and notwithstanding the decision in Lai Chuk-ting v. R. (1978) HKLR 402 where a similar complaint was made we are satisfied on the facts of this case that the sentences imposed should not be impugned on this ground.

45. We have no doubt that D6's criminal conduct in the present case called for the sentence of life imprisonment which was imposed. It is possible to distinguish his culpability from the other applicants. The actions particularly in relation to the shootout demonstrated that D6 was the ring-leader and overall mastermind behind these robberies. In this connection it was he who recruited the other applicants from China and arranged for them to come to Hong Kong and commit these offences. In addition to this the fact that he has taken an active part in 9 armed robberies means that he has to be treated for sentencing purposes much more severely than the other applicants. We can see no grounds for interfering with the sentences which were imposed on D6 so far as the shootout was concerned. It is however to be noted that D6 did receive life sentences on counts 30, 31 and 39 which related to causing an explosion and shooting with intent in relation to other robberies. We consider that the correct approach to these sentences would be to treat them as part of the relevant robberies and pass concurrent sentences in relation to them. Although it makes no difference in practice we adopt a starting point of 26 years and giving credit for the pleas pass sentences of 19 years' imprisonment on these counts.

46. Mr Stirling submitted that D3, D4 and D5 should be treated more leniently than D6. This was particularly the case for D5 as he had only been the driver of the getaway car during what was described as the shootout.

47. Also there was an important distinction in the overall culpability of these men. D6 who was clearly the mastermind behind the crimes and had pleaded guilty to 9 armed robberies as well as the shootout. D3 had only been involved in one and D4 and D5 in 2. They should not fall into the same category as D6 who was obviously a hardened criminal.

48. We can see some merit in this submission. We accept that it is only a most exceptional case that merits life imprisonment. We think that the offences committed by D3, D4 and D5 fall short of this. There can however be no doubt that very heavy sentences did have to be imposed on these men to reflect the seriousness of these offences.

49. The starting point for each of these men for the shootout should be 30 years' imprisonment. When we say shootout we refer to count 2 shooting with intent, count 7 and 11 causing an explosion for D3, counts 2, 4, 7, 8, 10 and 11 for D4 and counts 2, 7 and 11 for D5.

50. The next matter which has to be considered is the extent, if any, to which we would be justified in differentiating between the sentences passed on these 3 applicants.

51. D3 and D5 deserve some credit for their guilty pleas. Also their role would not appear to have been quite as serious as D4's. D4 received four life sentences in relation to the shootout against 2 for D3 and 3 for D5. We consider that the interests of justice would be served if D4 was sentenced to 30 years' imprisonment on the said shootout charges and D3 and D5 both received 25 years on these charges.

52. If these sentences are ordered to run concurrently with the other sentences imposed on the robberies the total sentences would in our opinion be disproportionately high. In the case of D3 (26 + 25) 51 years, D4 (24 + 30) 54 years and D5 (28 + 25) 53 years.

53. So far as these sentences are concerned there is a further matter which has to be dealt with.

54. D5 received a life sentence on count 18 for shooting with intent in relation to a robbery which was independent of the shootout. We consider that this has to be dealt with separately. The proper starting point for this offence should be given 24 years. D5 should be given credit for his guilty plea and the sentence is reduced to 18 years. This sentence is to run concurrently with the 28 years imposed by Duffy J in relation to the offences not forming part of the shootout.

55. To arrive at sentences which adequately reflect the seriousness of all these offences we order that part of the shootout sentences should run concurrently with the other sentences so that the totality of the sentences served by D3 is 32 years. D4 is 35 years and D5 is 34 years. This totality is designed to take cognisance of the variations required for the shootout counts and to also partially reflect the variations ordered by Duffy J on the other charges.