THE QUEEN v. HO HEI WAH

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JUDGMENT

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

1. The applicant, Ho Hei Wah, pleaded guilty to the 1st count of robbery on an indictment before His Honour Judge Leonard sitting as a Deputy Judge of the High Court on 31st May this year. On that day, he was sentenced to 11 years' imprisonment. Following his plea of guilty to the 1st count, no evidence was offered by the Crown on the 2nd count of the indictment (which was for possessing firearms and ammunition at the time of committing a robbery). He was the 1st accused on the indictment. There was a 2nd accused who was also sentenced on the same day, having pleaded guilty on an earlier occasion.

2. The facts were that on 18th September last year there was a robbery at a jewellery company in Fa Yuen Street, Mongkok, a small family business operated by a man, his wife and two employees. At about 10:40 a.m., when one of the employees had left the premises to buy something, he was grabbed by one of four robbers round the neck from behind and forced back into the shop. He was threatened and made to squat on the ground.

3. The applicant and the 2nd accused, together with a third man named Li Chi Kwong and a fourth man, entered the premises. The 2nd accused and Li were armed with 7.62 calibre 25mm semi-automatic pistols. The applicant carried a screwdriver and the fourth man a beef knife. The owner of the shop and his wife were also threatened and made to squat like their assistant. Gold jewellery to the value of  $149,000 was taken and it was the applicant's role to actually remove the jewellery while the 2nd accused kept watch. All the robbers ran out of the premises and the 2nd accused made his escape.

4. The applicant was with Li and as they were trying to make good their escape, the pistol carried by Li went off accidentally and a bullet went through his left thigh. It must have struck a very vulnerable point because despite an emergency operation performed later in hospital, Li never recovered consciousness and died a few days later. The applicant had been looking after him in a taxi until they were arrested by a police officer who had been alerted by member of the public.

5. The applicant confessed to the robbery after his arrest in a statement under caution. On his person had been found gold ornaments to the value of $44,770 which were. recovered.

6. On his first appearance before the Court, which was 7th March 1990, he pleaded not guilty. Mr. Thomas Iu who now appears for him informed us that he did not represent the applicant until some time later, after he had fallen out with the counsel who was then appearing for him. Mr. Iu said that it was only after he had had the opportunity of discussing the matter with the applicant that he had changed his mind and pleaded guilty to the 1st count of the indictment.

7. The applicant, who is aged 33, had a number of previous convictions. He was convicted of wounding in August 1973 when he was ordered to be detained in a Detention Centre. In September 1974 he was convicted of obtaining an advantage by deception and sentenced to 6 months' imprisonment, suspended for 13 months. In April 1975 he was convicted of possessing dangerous drugs and a breach of the suspended sentence order and he was ordered to serve one month's imprisonment and 6 months' imprisonment to run consecutively. In December 1975 he was bound over for being a member of a triad society. In August 1976 he was convicted of possessing dangerous drugs for trafficking and of possessing an offensive weapon and sentenced to 4 years' and 1 month's imprisonment to run concurrently. Finally, he was convicted of common assault in August 1980.

8. The judge commented in passing sentence that it was not until 29th May that the applicant had decided to change his plea to guilty although the judge acknowledged that he had admitted the offence when he made his statement under caution to the police after his arrest and that he had assisted the police so that they were able to arrest the man who was later accused with him in the same indictment. The judge said that the Court had to take a serious view of armed robbery in general and robbery with the use of firearms in particular.

9. Mr. Iu on the applicant's behalf asked us to note that although firearms were carried the applicant himself was not carrying a firearm, and that although one of the weapons had been fired it was not in furtherance of the robbery but by accident after the robbery had taken place. Mr. Iu submitted that the judge's choice of 15 years as the starting point, giving a reduction of 4 years on account of the plea of guilty, was too high.

10. Mr. Iu also drew our attention to the sentence imposed on the man jointly indicted with the applicant. He had been sentenced to consecutive terms of 6 years' imprisonment on the same robbery charge, 4 years' imprisonment for possessing firearms and ammunition while committing a robbery and 3 years' imprisonment for the possession of arms and ammunition without a licence. The 3rd count related to the same weapon which he used during the robbery and had taken home to hide. Mr. Iu suggested that the applicant was suffering under a justified sense of grievance due to the disparity between the sentence imposed for the robbery count on the 2nd accused and the sentence imposed upon him.

11. As regards the disparity point, we think that it is very clear from what the judge said, and the way he apportioned the sentences of imprisonment, that he was very properly taking the totality of the terms of imprisonment into account, the 2nd accused received an overall sentence of 13 years' imprisonment as against the 11 years imposed upon the applicant.

12. This was a very serious robbery, firearms were carried, people were threatened and frightened. The applicant's record did not justify any reduction from what would have been an appropriate sentence on account of previous good conduct. In these circumstances, we feel that we cannot interfere with the sentence imposed by the judge.

13. Before taking leave to this case, we record that before Mr. Iu opened the appeal, he asked us to adjourn the hearing of the appeal because the fourth robber had been arrested on 11th October and the applicant had indicated to the authorities that he was ready and willing to testify for the prosecution against him in proceedings which were due to begin by way of committal proceedings on 19th December. Mr. Daley who appeared for the Crown supported the application.

14. My Lord, the Vice-President, who presides today, drew counsel's attention to two decisions of this Court which appeared to him to be relevant. The first was The Queen v. Ng Hon Kit and Ho Chun Keung, Criminal Appeal Nos. 90 and 91; the judgment for the Court was given on 8th August 1990 by Power, J.A..   The second case was The Queen v. Sze Tak Hung, Criminal Appeal Nos. 313 of 1988 and 78 of 1989, where the judgment of the Court was delivered by Sir Derek Cons. Both these cases are not yet reported. In the second case, after referring to the judgment given by Power, J.A. in the earlier case, Sir Derek Cons had this to say:

"The position is in essence the same and the question whether to delay or not is essentially one for the discretion of each court in the particular circumstances. The only observation we venture to make is that as a general rule it is not desirable that questions of sentence should be left hanging in the air for long periods of time and that it would not seem right to delay the normal course of criminal proceedings indefinitely on the mere chance that the convicted person may at some stage be able to do something which would justify a reduction in his sentence."

15. Sir Derek Cons added:

"If at some late stage he does, that is something that can then easily, and in our view more properly, be taken care of under Clause XV of the Letters Patent."

16. Mr. Iu suggested that the position here was rather different because there was no "mere chance" that the applicant would give evidence for the prosecutions; he had promised and was determined to do so. Although it might well be not until the middle of next year, at the earliest, that the actual trial of the fourth robber would be over, the likely time frame was such that the Court could be sure that this appeal would not be postponed indefinitely or for too long. Of course, we took all these matters into account but we think that it is essentially wrong to postpone an appeal on the grounds suggested unless special circumstances are present. On the facts of this case we thought it was right to proceed with the appeal, approaching the matter as Sir Derek Cons did in the judgment from which we have quoted.

17. For the reasons given, we dismiss this application for leave to appeal against sentence.