THE QUEEN v. KAM CHUN PANG

IN THE COURT OF APPEAL

Criminal Appeal
No. 504 of 1991

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1.  The applicant pleaded guilty before Hooper J. both to robbery and to being in possession of a firearm and ammunition at the time of committing a robbery, and was sentenced to 13 and 4 years’ imprisonment respectively, both sentences to be served consecutively. He now applies for leave to appeal against those sentences.

2.  At the outset of the proceedings before the judge the applicant pleaded guilty to both offences but informed the court through his counsel that he required a Newton hearing to determine whether he had been holding a firearm at the time of the commission of the robbery.

3.  It was not in dispute that on the 15 July 1990 robbers wearing stocking masks and carrying hand guns entered a jewellery shop in San Po Kong and robbed the staff of jewellery valued almost S1.25m. As the robbers were leaving the shop and were about to board a car parked in front of it they were accosted by two auxiliary police officers who had drawn up in the police vehicle while the robbery was in progress. A gun battle erupted in the course of which one of the robbers was shot dead and the applicant was wounded as was another of the robbers who managed to escape.

4.  The applicant, while admitting that he was a member of the group of robbers and that he was in joint possession of a 7.62 mm calibre Type 54 automatic pistol and 5 rounds of ammunition at the time of committing the robbery, denied that his role was any more than that of driver of the get-away vehicle. In the course of the Newton hearing evidence was given by one of the auxiliary police officers and that he observed three masked men, each of whom was holding a hand gun, emerge from the jewellery shop and head for the car which was parked immediately outside. The nearside doors of the car were open. One of the robbers had a pistol held at a female hostage and was dragging her with him. Another robber opened fire at the police vehicle. A third robber, who was then standing outside the driver’s door of the parked vehicle, saw the officer and pointed his pistol at him. The officer opened fire at him but was not sure whether the shot had found its mark for the robber then boarded the car and sat in the driver’s seat.

5.  One of the other two robbers then turned and pointed his pistol at the officer. The officer opened fire at him and shattered the windscreen of the car. This robber and the third robber then attempted to board the car, forcing the woman hostage with them. When she resisted, one of the robbers pressed her to the ground. At this stage the driver of the car accelerated off and left his companions stranded. The two officers then fired more shots, one of which brought down one of the remaining robbers. The third robber made good his escape.

6.  Shortly afterwards the get-away vehicle crashed against a pedestrian railing in Tai Shing Street. The applicant was found in a semi-conscious state in the driver’s seat holding a pistol between both hands. He had a gun shot wound in the neck. A bag containing part of the proceeds of the robbery was found in the car. A subsequent medical report revealed that notwithstanding that the applicant had sustained injury to the left carotid artery, jugular vein and thoracic duct, he had made a good recovery from his wound.

7.  He elected to give evidence. He admitted that he had been enlisted by one of the other robbers to participate in the robbery and that his function was to steal and drive the get-away car. On the way to the robbery he became aware that his two companions were carrying firearms and, on arrival, he saw them produce them as they alighted from the car outside the jewellery shop. He asserted that he himself was not wearing a mask and was unarmed, but that after his two companions had entered the shop he saw a police vehicle approaching so he instinctively alighted from the get-away car and went to the entrance of the shop to warn them. As he returned to the car and was in the process of entering it he was suddenly shot. In his panic, he drove off, leaving his two companion behind. Finally he lost consciousness and crashed into the pedestrian railing. He sought to explain the fact that he had been found with a piston in his hands by saying that he recalled that immediately after the robbery one of his companions had thrown a pistol and the bag containing the jewellery into the car.

8.  Not surprisingly, the judge rejected this version of the events and found that the applicant had been wearing a mask and had carried a pistol in the course of the robbery. He added that even if the applicant’s account of what had happened had been true it would have made no real difference to the length of sentence.

9.  We entirely agree. Indeed, it is for this reason that we think that it was totally unnecessary to hold a Newton hearing. The evidence given at that hearing involved the calling of five prosecution witnesses and occupied 66 pages of transcript. This was followed by submissions from counsel. We consider that better use could have been made of judicial time.

10.  Where a person embarks on a robbery in which firearms are carried, the fact that he himself is not armed with a weapon but acts in the capacity of driver of the get-away car is not of itself a mitigating factor. His role is a central part of an enterprise to which he willingly lends his assistance.

11.  In his personally drafted grounds of appeal the applicant complains that the judge did not accept his version of the events and failed to take into consideration the fact that he sustained a neck wound and that the bullet still remains in his body. He also asserted that the judge had wrongly concluded that he was an idle and shiftless person who lived by engaging in unlawful activities, and that his counsel failed to stress to the judge that he was remorseful for what he had done.

12.  We do not think there is merit in any of these complaints. The applicant was sentence solely on the basis of the gravity of the criminal conduct with which he was charged. And, although he pleaded guilty to both offences, it is plain from what we have already said that, far from admitting the true nature of this role in the robbery, he attempted to deceive the court. Lastly, the applicant sought to compare his sentences with those passed on another offender in a different case. We take the opportunity of again stressing that, in determining whether we should interfere with a sentence, this court is solely concerned with whether it was excessive in all the circumstances of that case, not with whether it is heavier than one which was imposed on another offender in an entirely different case.

13.  On a consideration of the facts of this case we do not think that it can justifiably be said that 20 years was too high a starting point for sentence. Indeed, we feel constrained to say that the starting point was too low; it should have been 25 years. Nor do we consider that the discount of three years for the pleas of guilty was inadequate. Crimes such as these demanded very heavy sentences. The evidence against the applicant was overwhelming; he had no viable defence. The application for leave to appeal against sentence is therefore refused.