THE QUEEN v. KWOK SAI FUK

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Reasons for judgment handed down: 3 January 1991

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court):

1. These are our reasons for the decision we reached on 27th December 1990 to reduce the overall length of the sentences of imprisonment being served by the applicant, Kwok Sai Fuk.

2. The applicant was arraigned before Mr. William Howard, Q.C., sitting as a Deputy Judge of the High Court, on 17th January 1990, charged with six offences laid in two indictments. He pleaded guilty to them all. The first indictment (High Court Criminal Case No. 211 of 1989) charged him with robbery committed on 23rd March 1989. In the second indictment (Hign Court Criminal Case No. 212 of 1989) he was charged with possessing a firearm and four rounds of ammunition (Count 1) ; robbery (Count 2); using a firearm with intent to resist arrest (Count 3); false imprisonment (Count 4) and false imprisonment (Count 5). All these offences were allegedly committed on 18th April 1989.

3. On the day of his arraignment, the applicant was sentenced to 9 years' imprisonment on the first indictment. For the offences charged in the second indictment he was sentenced to 10 years' imprisonment on Counts 1 and 2; to 15 years' imprisonment on Count 3; and to 4 years' imprisonment on Counts 4 and 5. All the sentences imposed in both cases were ordered to run concurrently. Thus the applicant was to serve a total term of 15 years' imprisonment. From those sentences he sought leave to appeal to this Court.

4. As regards the offence charged in the first indictment the facts admitted were that at about 7:00 p.m. on 23rd March 1989, after the other staff had left the premises of a company which sells motor cars in Canton Road, three of the salesmen began to play cards. They had not closed the glass door or the outer iron gate to the shop. A quarter of an hour or so later, a man came in armed with something that looked like an automatic pistol and said he wanted money. Another man came into the shop shortly afterwards and threatened to stab one of the salesmen. Two of the salesmen were ordered to lie on the floor and the third to crouch down. They were all tied up. One of the men was robbed of a Rolex watch, a ring, a Dupont pen and a wallet. The second was robbed of a watch and $320 in cash. The third man had a watch, about $3,700 in cash, his identification card and his driving licence taken from him.

5. An hour or so after the robbery the applicant was stopped by an immigration officer and handed to the police in connection with another, earlier, alleged robbery. He was released on police bail and later failed to answer his bail.

6. The facts admitted by the applicant in respect of the second indictment were that at about 4:45 p.m. on 18th April 1989 two police constables were walking down Fa Yuen Street towards Shantung Street when they saw the accused emerge from a building in Shantung Street. Their attention was drawn to the applicant by his hurried manner and nervous appearance. He was asked to stop and produce his identity card. He ignored both requests and ran into a building in Fa Yuen Street. The police officers followed him into the building and told him to stop. When the applicant turned round the officers found themselves facing an automatic pistol. The applicant cocked the weapon and said, "Don't move." As his attention was focused on one of the police officers, the other took the opportunity to slip past and used his radio to summon help. Meanwhile the applicant seized the first officer's revolver which was still in its holster. He took the weapon in his left hand, cocked it and returned his own automatic to his waistband. He then threatened the officer and forced him to untie the lanyard from his bent saying that otherwise he would be shot.  The applicant then ran past the officer, throwing the service revolver into a fire housing near the entrance of the building.

7. When the second police officer ran out of the building in Fa Yuen Street he saw the applicant and shouted, "Police, don't move." The applicant ran off along Shantung Street in the direction of Sai Yee Street, but remained in the sight of the officer. By this time other police officers had joined the chase in response to calls for assistance. The applicant turned and fired a number of shots at the officers causing them to scramble for cover. One of the officers lay flat on tile pavement in Shantung Street and returned the applicant's fire. The applicant was then seen to run into Hak Po Street where he jumped into the rear seat of a taxi which moved off slowly to turn into Shantung Street. He had ordered the taxi driver to drive off with a gun to his head.

8. One of the officers fired at the taxi, shattering its rear window. It continued into Shantung Street where it was stopped by traffic. There, the applicant got out of the taxi and opened fire on the police who returned his fire. When the applicant got back into the taxi and fired again at the police they returned his fire once again. During that exchange the police fired 14 rounds.

9. The applicant then left the taxi and ran towards Yim Po Fong Street, again firing at the police officers in pursuit. The police involved say that the applicant fired on them "some ten odd times." Subsequent examination of the weapon the applicant had in his possession at the time showed that it jammed frequently and he may have been presenting the gun at the officers involved, only to have it jam on him. Due to the confusion, however, coupled with the fact that he did fire on the police at least twice, it is possible that the officers thought they were fired upon more times than they in fact were.

10. The applicant then ran into Yim Po Fong Street. By this time four other police officers had joined the chase. In Yim Po Fong street the applicant jumped into the rear seat of a privately owned Volvo which was stationary at the traffic lights. The Volvo then moved off along Yim Po Fong Street in the direction of Nelson Street. Some of the police officers boarded a taxi and followed the Volvo. By this time police were converging on the applicant from all directions. Eventually the Volvo was held up by traffic and some of the police officers were able to drag the applicant from the vehicle. He raised his hands in surrender.

11. On the road taken by the applicant, in the taxi and in the Volvo, the police found two empty cartridge cases and four live rounds from the applicant's gun, a Hungarian 9mm. Makarov self-loading pistol whose magazine could hold seven rounds of ammunition.

12. The applicant is now just over 30 years of age and entered Hong Kong illegally in 1977. He had been before the Courts before. He was sentenced to 9 months' imprisonment in 1980 for possessing dangerous drugs. He served a sentence of 7 years' imprisonment, imposed in October 1981, for robbery. He also has two convictions for assault.

13. In passing sentence, the learned Deputy Judge said that he was taking a sentence of 18 years as the starting point for using a firearm with intent to resist arrest. He added that since the applicant had pleaded guilty and had co-operated with the police he would be given a discount of three years, so that the total term the applicant would have to serve (with all the sentences on both indictments being ordered to run concurrently) would be 15 years. Prosecuting counsel had told the judge that in relation to the robbery charged in the first indictment, the applicant had co-operated by giving a statement implicating the other two men involved with him in the robbery and by indicating that he would be willing to give evidence for the prosecution when those two men came up for trial.

14. The totality of the criminality revealed by the facts the applicant admitted fully warranted an overall sentence of 15 years' imprisonment following his pleas of guilty. The offences the applicant committed on 18th April 1989 were very grave indeed and displayed a callous disregard for the safety of life and limb. However, administrative arrangements were made to postpone the listing of this appeal, even after legal aid was refused at the end of April 1990, until the applicant was able to give evidence for the prosecution against his two confederates in the 23rd March 1989 robbery. We were told that he gave this evidence on 25th September 1989. Mr. Casewell, who appeared for the Crown on the appeal, informed us that although one of the men he implicated was acquitted by the jury, the applicant had come up to his proof in giving his evidence.

15. As a result of the recent decisions of this Court in The Queen v. Ng Hon Kit and Ho Chun Keung, Criminal Appeal Nos. 90 and 91 and in The Queen v. Sze Tak Hung Criminal Appeal Nos. 313 of 1988 and 78 of 1989 (both referred to in The Queen v. Ho Hei Jan, Criminal Appeal No. 285 of 1990 (29th November 1990)] the hearing of an appeal against sentence will not normally be delayed in future to see whether or not an applicant will keep a promise he has made to testify for the prosecution in a given case. However, since this appeal was stood over for that very purpose, we thought that the applicant had a legitimate expectation of some reduction in his overall sentence once he had honoured his undertaking. It was for this reason, and this reason alone, that we allowed the appeal to the extent only of reducing the sentence on Count 3 in Case 212 of 1989 from 15 years to 13 years' imprisonment, so that the applicant will now serve concurrent sentences totalling 13 years.