THE QUEEN v. IP KAN WAI

Headnote

Sentence - conspiracy to rob and carrying arms with intent to commit robbery - after plea of guilty, sentences of 7 and 9 years were imposed and 3 and a half years of the first sentence was ordered to be consecutive to the second sentence. Despite plea of guilty and other mitigating circumstances, overall sentence of 12 and a half years was held to be appropriate.

-----------------

JUDGMENT

-----------------

Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced counts of conspiracy and of carrying arms and ammunition with intent.  These were particularized as follows: that he, together with one TSANG Kam-hing, on the 15th of June 1989, at the public toilet at wing On Department Store, conspired to commit an armed robbery, namely, to rob a jewellery shop in Queen's Road, Central, Hong Kong and that on that same day, at 23 Mercer Street in Hong Kong, he had with him a Chinese made semi-automatic pistol and 6 rounds of ammunition with intent to commit an arrestable offence, namely armed robbery. His Honour Judge Gall sitting as a Deputy Judge of the High Court on the 22nd of March 1990 sentenced him to seven years on count 1, and to nine years on count 2 and ordered that three and a half years of the sentence on first count be consecutive to the sentence on the 2nd count, making twelve and a half years in all.

3. He now appeals against both sentences on the ground that the judge erred in ordering three and a half years of the sentence on the charge of the conspiracy be consecutive to the sentence on the charge of carrying arms and ammunition.

4. It is also urged that the learned judge erred in taking twelve years as the starting point for the sentence on the charge of carrying arms and ammunition with intent to commit an arrestable offence.

5. It is, finally, submitted that the totality of the sentence imposed - twelve and a half years - is too high in all the circumstances.

6. The applicant originally appeared before O'Connor J. on the 2nd of November 1989 and was remanded in custody for sentence at the conclusion of the trial of the co-defendant Tsang. This trial concluded on 20th March 1990 and the applicant and the co-defendant, who had been convicted, were then remanded in custody to appear on 22nd March for sentence.

7. The agreed Summary of Facts was read before O'Connor J., and Mr. Mackay, who appeared at that time for the applicant, confirmed before Deputy Judge Gall the applicant's agreement thereto. It appears that the applicant gave evidence for the co-defendant which was, to an extent, contrary to the admissions made in the agreed facts. He did not, however, in any way resile from the essential admissions as to his own participation. These indicated that he and the other man, who the jury were satisfied was Tsang, had agreed to rob a jewellery store in the Central District on 15th June 1989. Tsang provided two revolvers and the two men went to Queen's Road Central intending, at that time, to rob the King Fook Goldsmith Company. They were, it appears, spotted by alert police officers while "casing" jewellery stores in Queen's Road, Central. The police having followed them into Mercer Street, identified themselves and both men then fled. Tsang drew his pistol and fired a number of shots. The police returned fire,  the applicant ran into Hing Yip Building and was eventually arrested on the 10th floor of that building. lie then led police to where he had hidden his gun oh the mezzanine floor.  It must be said that he did not at any stage either draw or fire his gun.

8. When dealing with the applicant the trial judge said:

"He has a clear record and entered a plea of guilty, as Mr. Mackay says, at the earliest possible moment. His involvement in this matter, it is clear, was hot that of the principal motivator. He did not acquire the weapons and he, it appears and I accept, was the lesser of the two in carrying out or seeking to carry out the robbery. He fired no shots. Although he was carrying his weapon with intent to commit an arrestable offence, he did not draw that weapon although it is quite clear that he had it on his person intending to use it should it be necessary to effect the robbery."

9. When determining the term of the sentence the trial judge said:

"I have considered carefully the respective sentences to be passed which reflect these differences between the defendants. I have taken into account all that I have heard, all that each, it is agreed or has been found, did in the course of these offences.",

In respect of applicant on the first charge - the conspiracy to rob, the judge took a starting point of 10 years and said:

"After giving concession for a clear record and plea of guilty and all other mitigating factors I find that a sentence of 7 years' imprisonment is appropriate. In respect of carrying a firearm with intent to commit an arrestable offence, I find that a starting point of 12 years is appropriate; and after concessions for a plea of guilty and all other matters, a sentence of 9 years' imprisonment to be appropriate. Of the sentence of 7 years for conspiracy to rob, 3 and a half years will be consecutive with the second count of carrying arms with intent, making a total sentence of 12 and a half years."

10. We remark, in passing, that the criminality of the co-defendant was such that the trial judge was satisfied that a total period of imprisonment of twenty years was appropriate.

11. It is argued by Mr. M.K. Wong, who appears today for the applicant, that the trial judge imposed a total sentence which was too severe. He submits that the judge failed to take into account that the criminality as regards the conspiracy, it being conspiracy to use a weapon, was to an extent the same as that involved in the carrying of the weapon. The primary consideration for this court must be the totality of the sentences. We must ask ourselves, however it may have been that this totality was achieved, whether it was the proper overall sentence. When so doing we must bear in mind that the conspiracy involved two sophisticated semi-automatic weapons which were intended to be used in a busy area in the Central District in mid afternoon for the purpose of robbing a jewellery store. We must also bear in mind that the carrying was done by the applicant when actually embarking upon the robbery. We do not think that any purpose would be served by canvassing the authorities cited as each is to a very large extent governed by its particular facts. Having regard to the seriousness of the offence we have no doubt whatsoever that the totality of 12 and a half years was not too severe.

12. For these reasons, the application for leave to appeal against the sentences is refused.