SECRETARY FOR JUSTICE v. CHOI WING WAH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Application for Review
1998, No.3

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J U D G M E N T

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Power, Ag. Chief Judge, H.C. (giving the judgment of the Court):

1. The respondent pleaded guilty to one count of conspiracy to rob. This read that he, on 20th and 21st days of October 1993, conspired with Kwok Wing-yu, Wong Hei-yan and Lee Kin-fai to rob. He pleaded not guilty to a second count of having arms with intent to commit an arrestable offence and the prosecution did not proceed with that count.

2. The agreed facts that at around 1:10a.m. on 21st October, two PCs who were patrolling along Portland Street, Mongkok, saw two men sitting inside the light goods vehicle and two other men were standing in the vicinity of the rear of that vehicle. As the officers approached the van, the two men who had been standing in the rear hurriedly boarded the van. One of the police officers questioned the driver. The driver did not answer but the van suddenly started and was driven to Yu Chau Street. The officers called for assistance. At the intersection of Maple Street and Yu Chau Street, the man was stopped and all four men, one of whom was the respondent, alighted. A black handgun fell the ground while they were alighting. The men were chased by police officers and eventually intercepted and the respondent, when challenged as to why he had started to run, remained silent. A yellow paper bag was found in his left breast pocket. The handgun which had fallen to the ground was found to contain five bullets.

3. Subsequently under caution the respondent admitted that he and the other males had stolen the van on the afternoon of 20th October; that they had agreed between themselves to rob the Spring Autumn Restaurant when it close for business; that they boarded the van and, after boarding the van, agreed that a hand gun, two beef knives, plastic gloves, an electric drill and a screwdriver would be used in the robbery. He also said that the yellow paper bag was meant to hold the stolen money. The handgun was found to be a Chinese military 7.62 x 25 mm calibre self loading pistol and the five bullets were suitable for use therein.

4. It is, we are satisfied, an offence of very great gravity - conspiracy to rob using a pistol. The respondent was sentenced to imprisonment for four years. The trial judge, Judge Wesley Wong, indicated when sentencing that he had adopted a starting point of six years which he reduced for plea to four years. Not surprisingly, in our view, the Secretary for Justice has applied to this court to review that sentence.

5. The judge said when sentencing:

"You were caught virtually red-handed. The only mitigation is your plea of guilty, which demonstrated your remorse, and that you've saved court's time and public money. For this, you deserve a substantial discount. In sentencing, I do not take into consideration the fact that you've jumped bail; nor do I consider that you had knowledge of the existence of a handgun.

I sentence you on the basis of a conspiracy to commit an armed robbery. The normal starting point for this type of offence is five years, but in view of the fact that there are four persons involved with weapons and electric drills, it's more serious than the normal case, and I take the starting point of six years. I give a one-third reduction and sentence you to four years' imprisonment."

6. So much for what the judge said at the time of sentencing. He appears to have been proceeding on the basis that the respondent did not have knowledge of the existence of the gun. We find this very difficult indeed to understand. It was an admitted fact that when the four boarded the van they agreed that a handgun, two beef knives, plastic gloves, an electric drill and a screwdriver would be used. Moreover, it was admitted by the respondent's counsel that that had been the agreement. He said:

"according to my instructions, was also brought there by Kwok. Everyone, according to my instructions, was quite surprised at the time when Kwok produced this pistol after they boarded the van. All along the other three, certainly the defendant, was expecting knives to be used but not a pistol."

He went on later to say:

"when the defendant was asked to take part, he did not know and did not have the least idea that a lethal weapon, in the form of a pistol, was to be used."

7. This is, of course, not denying knowledge that a pistol was to be used but saying that the knowledge came to the respondent at a late stage. That could properly have been taken into account but it was wholly wrong to state, as the judge did, that he did not have knowledge of the existence of a handgun. We are now told by Mr. Finny Chan, who appears for the respondent, that he gave material assistance to the police. This was also placed before the trial judge, although it was not developed to the extent which it has been today. The judge was told that he had given information which led to the arrest of one of the participants but no mention was made of a photographic identification of another offender.

8. The judge was plainly wrong to take a starting point of six years. Further, he failed inexplicably to take into account that there was a weapon and that when they embarked upon the robbery the respondent knew that it was intended that it would be used in the robbery. The proper starting point was not six years but 15 years. The trial judge was also, when giving the discount, wrong in failing to take into account the fact that the respondent had, while on bail awaiting trial, absconded. He was not entitled to a full one-third discount of 5 years. That discount should itself have been discounted by one year making the discount for plea four years. That would leave a sentence of 11 years.

9. The trial judge was also wrong in failing to take into account that the respondent had given effective assistance to the authorities which led to the arrest of one of the offenders. We have been told today that he gave further assistance by making a photographic identification of another of the offenders. We are prepared to give, and we hope we do not err on the side of generosity when so doing, a further discount of two years on that account. This is a generous but it will, we trust, send a message to those involved in crime that effective assistance given to the authorities will be taken into account when it comes to sentence.

10. We are left then with a sentence of nine years.

11. The application is allowed and the sentence of four years is varied to one of nine years.