THE QUEEN v. LEE CHI YUEN AND ANOTHER

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J U D G M E N T

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Hunter, JA :

1. On 2nd December 1988 the two applicants pleaded guilty before Garcia J to an indictment containing two counts. The first count was an allegation of robbery on 15th August 1988 at a private flat in Castle Peak Road. It named the eleven victims who were attending that property playing mahjong. The second count related to the same occasion and was a charge of possessing firearms and ammunition whilst committing that robbery. Garcia J imposed upon each of the applicants a sentence of eight years' imprisonment on the robbery count and six years' imprisonment consecutive on the firearms count.

2. The circumstances of the offences were these. On that afternoon of 15th August, nine persons, the majority of whom were aged over fifty-five years, were playing mahjong in this private flat. The two applicants and another man burst in. Both the applicants were brandishing home-made pistols. The third man was brandishing a 10-inch long fruit knife. The victims were threatened and told to place their money and jewellery on the table. Their thumbs were tied together with wire which the applicants had brought with them. Their mouths were sealed with adhesive tape. Whilst this was going on, two other persons, potential players, arrived; tried to escape; were captured, brought back and robbed. In all there were eleven victims.

3. The three men then left the premises, which the police then appear to have had under observation. They split up. The first applicant, Lee Chi Yuen walked towards a Station Sergeant Fong Hung Kwan. The policeman challenged him and ordered him stop. The Sergeant then saw that his hand went to what appeared to be the stock of a pistol at his waist band. He shouted to him again "don't move or I will shoot". His hand remained where it was. The police officer then fired and shot him in the leg. He was arrested and found to be in possession of a quantity of the stolen goods. The pistol which he had in his possession with live rounds of ammunition in the chamber, was described as "a home-made pistol 7.62 by 25 mm calibre having the appearance of a Chinese-type 54 silver loading pistol". He did not in fact use that weapon, but it might be thought that he came as close to it as was possible, and might well have done so but for the alertness and bravery of sergeant Fong.

4. The second applicant, Leung Hau Koon, went in a slightly different direction. He was there challenged by two police officers, Detective Police Constable Chan Pak Chuen and Sergeant Ng Lin Sun. The Detective Police Constable was a short distance away when he stopped and challenged him. This applicant then drew his pistol, and pointed it at the Detective Police Constable with his finger on the trigger. The Constable, in an act of very considerable bravery, closed with him and discarmed him. He was then arrested, and likewise found to have on his person a quantity of the stolen goods. This pistol was described as a copy of a Smith & Wesson .22 inch long rifle calibre with seven live .22 rounds in it.

5. In those circumstances it is said by way of mitigation that all the property was recovered. That is true it was, because they were caught red-handed almost at the door.

6. Secondly it is said that although firearms were carried they were not in fact fired. Again that is perfectly true. But in both instances they came as close as could be to the act of firing, and were only frustrated by the bravery of the two police officers concerned. It was a robbery involving eleven victims who were treated outrageously. It must have been a horrifying experience for them. It was carried out in broad daylight in the afternoon in private premises.

7. In pronouncing sentence the judge said this :

"The use of firearms has become quite common in recent days in the course of robberies, and this is a situation which must not be allowed to continue."

Then he went to point out, as I have done, that neither pistol was fired but due solely to the bravery of the police officers. He pointed out the seriousness of the offence and said that the only mitigation was their plea of guilty in the face of the Court. With that I entirely agree. This plea of guilty was the only mitigating factor, but it must be recognised that no other plea was realistically or remotely available having regard to the circumstances in which they were caught.

8. Miss Chainrai has said everything that could possibly be said on their behalf. She accepts the seriousness of these offences, and properly says that the only question for this court is the totality of these sentences. There is clear authority that when these circumstances arise and there are two counts in the indictment that consecutive sentences, at least in part, should be imposed.

9. The question for this Court is whether a total sentence of fourteen years' imprisonment in the circumstances of this case sufficiently reflects the criminality of these offences.

10. In our judgment it is impossible to say that the sentences imposed do not do that, or are manifestly excessive. In the circumstances both applications must be dismissed.