LEE Sai-wah and Another v. R.

IN THE COURT OF APPEAL

1993, No. 156
(Criminal)

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J U D G M E N T

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SEARS J. (Giving the Judgment of the Court)

1. These two applicants were convicted in March 1993 year before His Hon. Judge Wong sitting as a Deputy High Court Judge. There were a number of charges brought against both of them and they arise out of the same set of circumstances as follows.

2. In March 1992, a Mr. HO Siu-kee, went to collect his BMW car at the multi-story car park in Yaumatei. As he was about to drive off, a Chinese man held open the door and pointed a pistol at his temple, telling him to get out. The 1st applicant appeared holding a knife; he threatened Ho with the knife and pushed him into the rear seat. Ho was then tied up and gagged with adhesive tapes and strings. He was told to get into the boot of the car and the car was then driven off.

3. At about 11 o'clock that day, the car with the two Chinese men in it picked up the 2nd applicant who had with him two semi-automatic pistols. Mr. Ho, who had actually untied himself during the journey, when the boot was open, tried to run away. The 1st applicant caught hold of him and punched him. He was overpowered and his eyes and mouth were covered. He managed to break loose eventually, shouted for help and was rescued by passers-by. The car together with these three men now on board and a variety of guns was eventually stopped by a police officer at mid-day at the junction of Ma Tau Kok Road and Kowloon City Road. The driver of the car leapt out from the car and was told by the police officer to stand still. One of the persons inside the car put his head out and fired a shot. The officer fired back and there was an exchange of gun fire. The men who were in the car rushed out and, as the police officer had run out of bullets, the officer was unable to give chase.

4. During the gun battle, the 1st applicant was shot in the right arm. He went to Kai Tak Airport but was arrested by three police officers of the Airport Security Unit. He had on him two black stocking masks, 2 pairs of labourer's gloves and 4 bank account pass books. When he was interviewed, he admitted having robbed Ho of his car and intending to use the car as a getaway car in a robbery which was going to be committed. The 2nd applicant who escaped was later arrested on 14th July at a restaurant. He had in his possession at his waist a Chinese made 54 semi-automatic pistol and a Chinese M20 pistol. The 54 pistol was loaded with 7 live rounds with 1 live round in the chamber. A pistol magazine was found in his pocket containing 8 live rounds. The other pistol was also loaded with 7 rounds with one further live round in the chamber.

5. In the vicinity of the gun battle, the police had found a third gun another Chinese-made 54 semi-automatic loaded with 3 live rounds of ammunition. Later that day, the 2nd applicant on 14th July took the police to a room in Argyle Street, Mongkok and with keys seized from him, they opened the flat door and found another Makarov model 59 pistol with 3 live rounds and another model 54 pistol with 7 live rounds and also a silencer. This was a very grave matter and there was no doubt these men, some armed and some not armed, were intent upon a very serious robbery.

6. When the matter came to Court, it appears from the record that the Summary of Facts was not read in open Court. It has been said before by this Court that criminal trials are public matters and it is incumbent upon the prosecution to ensure the Summary of Facts is read in open court and it is most regrettable that this did not occur.

7. The judge, when he came to sentence the 1st applicant, took into account the fact that he had indicated that he would be prepared to be a Crown witness against the 2nd applicant, who at that time was intending to plead not guilty, and he said that he deserved credit for that and should be given a substantial discount.

8. On the offence of the false imprisonment, the kidnapping, he took a starting point of 6 years. That, in our judgment, is taking a very lenient view of these grave matters. He gave a discount so that it was reduced to 3 years. For the assault, he sentenced him to prison for 3 months. The 3rd count was a robbery of the car in the car park and the judge said that as a gun was used, a starting point of 15 years should be taken. He gave him a discount of 7 1/2 years so that the sentence on that was 7 1/2 years.

9. This on any view is a most generous discount. Although the 1st applicant had indicated that he would be a Crown witness, nothing had as yet happened. In our judgment, the judge was very lenient to deal with the applicant in the way he did. As far as the 4th count was concerned, which is an equally serious matter of conspiracy to rob, where these men, together with others, with at least five guns and a substantial amount of ammunition, were intending to carry out some robbery, the judge said: "For the 4th count since the plot was aborted, I take a starting point of 4 years and give you a discount so that you go to prison for 2 years." In our judgment, that was a wrong approach. This was a very serious matter and the judge should have sentenced him to an appropriate period of imprisonment, and then had regard to the totality, if he was intending to pass a consecutive sentence. For this type of armed conspiracy, we would have thought that at least 10 years would have been the appropriate sentence after plea. The judge ordered that 2 years should be consecutive to the earlier sentences making a total sentence of 9 1/2 years. In our view, the sentence passed on this applicant was lenient and really failed to have regard to the protection of the public.

10. As far as the 2nd applicant was concerned, who took part in this gun battle, the judge said this: "The use of guns in broad daylight is so prevalent these days that I must impose a deterrent sentence." He did not indicate, unfortunately, what was the starting point for sentence, but merely said: "So, on the 3rd count, I sentence you to 8 years' imprisonment (which was possession of fire arms without a licence), and the 4th count to 6 years' imprisonment (which was also possession of fire arms.)" Presumably, the judge had in his mind a higher figure than the 8 years.

11. On a further count in a separate indictment, with regard to the other guns found in his flat and the live ammunition, the judge said: "In view of the fact that you led police to recover the weapons, I impose a lower tariff than is stated in HO Chun's case." The judge was referring to a decision of this Court in R. v. HO Chun [1992] 1 HKLR, p.86 where Silke, V-P had said: "In view of the spate of robberies in Hong Kong, .... which the using of guns is involved...., this Court would be unlikely to interfere with sentences of at least 8 years' imprisonment .... after a plea". There were two loaded guns and a substantial quantity of live ammunition.

12. In our judgment, the appropriate sentence which the judge should have passed, was one of at least 8 years' imprisonment. The sentences were consecutive, which in our judgment, as a matter of principle, was correct, and the total sentence was one of 14 years' imprisonment. We do not think that in any way excessive and may have been on the low side. In our view, such a sentence properly reflects the gravity of this type of offence. The applications for leave to appeal against sentence by both applicants are dismissed.

Power. V.-P.:

13. I wish to emphasize one of the matters which has been raised by my brother Sears. The 1st applicant having pleaded guilty on 25th March 1993 the following exchange occurred:

"Mr. Yau (Crown Counsel): May it please you, my Lord, I now submit to you the Summary of Facts against the 1st accused.

Court: Have you explained the facts to your client, Mr. Wong?

Mr. Wong: Yes, I have, my Lord.

Court: Agreed?

Mr. Wong: He indicated he agreed to the facts.

Court: The 1st accused is found guilty and convicted on the 1st, 2nd, 3rd and 4th charges on his own admission.

14. As my brother Sears has indicated, the facts were never read out in open court. The only proper procedure, even though the facts may have been agreed and signed by counsel for the Crown and for the defence, is for them to be read and translated in open court. After this has been done, defence counsel should indicate that those facts are admitted. This procedure should always be adhered to.