THE QUEEN v. WONG KING SUN AND OTHERS

Headnote

Sentences for robbery with firearms and the discharge of firearms in the course of an escape.

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Wong King Sun - "D1" -, Choi Hing Cheung - "D2" - and Chan Siu Ming - "D3" -appeared for trial before His Honour Judge Corcoran, sitting as a Deputy Judge of the High Court, on an indictment containing three counts: the first robbery; the second: possession of a firearm at the time of committing that robbery and the third, peculiar to the 3rd defendant, the use of a firearm with intent to resist arrest.

2. They pleaded guilty and were sentenced as to D1: on the robbery count 18 years' imprisonment; the possession of firearms count 8 years' imprisonment, both concurrent, giving a total of 18 years; as to D2: on the robbery count to 16 years' imprisonment; for the possession of firearms 8 years' imprisonment, both concurrent, giving a total of 16 years; as to D3: on the robbery count is years' imprisonment; on the possession of firearms count 8 years' imprisonment, and on the use of the firearm count 18 years' imprisonment, three years of which last was to run consecutively to the concurrent sentences on the other two counts giving a totality of 21 years.

3. D1 was aged 25, D2 was aged 20 and D3 was aged 30. They now seek leave to appeal against those sentences.

4. On 24th October 1988, a robbery took place at the Evergreen Jewellery Company on the ground floor of No.318 Nathan Road. This at about 11:45 a.m. and a sum of a little over one million dollars value of jewellery was taken. Four robbers entered the premises, two of them had hand guns. There were about five staff on duty at that time and they were made to lie upon the floor. The guard had his shot gun taken from him. The two who had the gun were D3 and a man who later became known as "Wah Chai", now deceased.

5. After the showcase was smashed and jewellery taken, the robbers left the scene. An Auxiliary Police Sergeant, having been alerted by a public spirited citizen, went to the area of the premises and confronted the gang. He was fired at. More auxiliary police officers joined in and there was a chase. In the course of this the robbers hijacked a goods vehicle, forcing the driver out of it at gun point. Further police arrived on the scene and private vehicles were commandeered and the chase continued. Both sets of vehicles, that is the robbers in the van and the policemen in the commandeered vehicles, ground to a halt in a traffic jam near the Kowloon Post Office. An auxiliary police constable got out of one of the commandeered vehicle and the robbers left their vehicle. Shots were fired at the constable and that fire was returned. This was the second incident of shots being fired. The robbers retreated into their van and recommenced firing. This was the third occasion.

6. An auxiliary Police constable approached the van, saw a revolver being pointed at him by one of the persons in it and he fired three shots into the van itself. The robbers then left the van for the second time and went towards Public Square Street where they split up. D3 and "Wah Chai" going up the steps to a public playground: D1 and D2 going down to Arthur Street. D3 was caught but "Wah Chai" continued his flight and also firing at the police as he went. That fire was returned and he was fatally wounded. D3 had earlier been wounded in the course of the shots at the van. D1 and D2 were then caught and each of them had part of the proceeds of the robbery in his possession. All the proceeds of the robbery have in fact been recovered. Both D3 and "Wah Chai" were illegal immigrants, D3 having, arrived in Hong Kong on 14th October 1988 just ten days before the robbery.

7. Essentially, all of them had clear records. D1 had a minor gambling conviction which was not taken into consideration, and quite properly so, by the trial judge.

8. At trial and we think before us it has been accepted that this was a very serious offence. D1 became involved in it because of debts which he incurred which he was unable to repay. Mr. Plowman, quite rightly, does not rely on this in any sense as being mitigation. He became a willing participant in the robbery through the recruitment of D2. D2 was himself recruited by people in the background who were described as "bosses" Neither had met D3 or the dead man prior to the day of the robbery. Neither D1 nor D2 carried guns and neither participated in the planning of the robbery. The role of D1 was said to be the bagman, the role of D2 was unclear. They both, as did D3, made confessional statements after their arrest fully disclosing their participation in the offence. None resiled from that in Court. There was an indication at the pre-trial review that pleas might well be advanced.

9. D3 was recruited by "Wah Chai" whom he had known in China prior to coming to Hong Kong. It was he who supplied the guns. While be was charged with the use of a firearm with the intent of resisting arrest it is accepted that, though he attempted to fire a gun, it failed to fire.

10. The trial judge in his approach to the sentences which he eventually imposed clearly bore in mind the totality principle. He also had in mind the matters which were drawn to his attention and which have been drawn to our, attention today. He accepted that the three defendants were not the organisers of the robbery and he accepted that the people who were the organisers would probably have taken the major part of any financial reward which might have arisen as a result of it. All three knew that guns were being carried. Persons who carry guns can usually be expected to make use of them should that use be in attempting to prevent escape being impeded or in the course of the robbery itself. He considered, as between D1 and D2, the age of D2 which was, as we have said, 20 years. He did not, at the time when imposed the sentence he did, have the benefit of two decisions. The first, on 26th May 1989, still, as far as we are aware, unreported: The Queen v. Chin Sin Fu, Crim. App. 191 of 1988. There a differently constituted Division of this Court was addressed in full on sentences passed in a number of cases of this type of robbery. At page 7 it was said, having set out those particular authorities:

"The purpose of drawing our attention to these unreported judgments is to indicate that in cases where guns are carried, and in some of them discharged, in the course of a robbery - 16 years after a contested trial would be a proper sentence."

11. The second, The Queen v. Yau Shing Por C.A. 17/1988 (unreported), in which judgment was given on 11th August 1989 Macdougall, J.A. in delivering the judgment of the Court said at page 2, and the circumstances were not dissimilar from here:

"Moreover in cases of robbery of this kind the courts are concerned primarly with deterrence, not with rehabilitation.

Those who use firearms in the course of committing robbery can expect no mercy from the courts."

12. In that case there was a single shot fired in the course of the robbery. It was thought that it was either fired accidentally or that fired intending to subdue or frighten the victims. The Court took the view that an overall sentence of 17 years' imprisonment was too high. That was a totality reached by the imposition of 17 years for the robbery and of 10 years, concurrent, on possession of firearms count.

13. In an earlier case, A.G. v. Chan Lee Kong A.R. 1/1980 Li, V.P. who delivered the judgment of the Court, had for consideration sentences passed upon conviction after trial on one count of robbery, one count of wounding with intent and one count of using a firearm with intent to resist lawful arrest. The sentenceswere of a totality of 14 years. The count of wounding with intent concerned the serious wounding of a Police Constable.

14. Again various authorities were cited, the majority of them unreported, and the Court came to the conclusion that the circumstance of that case merited an overall sentence of 20 years. The Courts have always considered the shooting of a policeman to be an offence of the gravest kind. In that it can be distinguished from the present case, from Yau Shing Por and from Chin Sin Fu.

15. While Chin Sin Fu may have indicated, in the circumstances relevant to that case, that 16 year was a generally proper sentence, here we have to take into consideration the several occasions upon which firearms were discharged by the robbers and this in the public streets. Nevertheless, we think that the trial judge in taking the starting point of 22 years after trial and before mitigation in respect of D1 and the 20 years in respect of D2- D3 falls into another category - was starting at too high a point. In our judgment, and bearing in mind the sentences and circumstances of other cases this case warranted a total sentence of 18 years after trial as a starting point for all the applicants on the robbery count. The several matters of mitigation, in particular the pleas and the nature of their participation, permitted a discount of 3 years for D1 and, bearing in mind the youth of D2, the discount there should be 4 years arriving at a total of 15 years for Dl and 14 years for D2.

16. As to D3. The trial judge also took as the starting point 22 years for the robbery offence. Again, we think that 18 years would have been the proper starting point - we, do not alter, in any case, the sentence of 8 years imposed on the possession of firarms count they remain concurrent in respect of each applicant.

17. On the third count, that is the use of the firearm, we consider on the circumstances here a starting point of 18 years would also have been proper so, dealing with D3 on the 1st and 2nd counts in the same manner as we have dealt with D1, the sentence on the first count will be 15 years and the second 8 years, both concurrent. On the third count the sentence is also one of 15 years but we order that two years of that last sentence will run consecutively to the concurrent sentences on the first and second counts giving a totallity of 17 years' imprisonment.

18. We therefore grant leave, treat the hearing of the application as the hearing of the appeal and reduced the totality of the sentences on D1 from 18 years to 15 years, on D2 from 16 years to 14 years and on D3 from 21 years to 17 years.