THE QUEEN v. CHAN KWAI LAM

IN THE COURT OF APPEAL

1993 No. 318
(Criminal)

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JUDGMENT

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Litton, J.A. giving the judgment of the court:

1. There are for four applications for leave to appeal against sentence before us. The applicants are respectively Chan Kwai-lam D1, Wong Mur-ching D6, Lau Chun-kwan, D7 and Chow Tak-pang D8. They were all sentenced by Deputy Judge Pang in the High Court on 16 June 1993 in relation to various counts on the indictment.

2. We will deal with the case of Chan kwai-lam D1 first. He pleaded guilty to four counts on the indictment on 26April 1993. The third count was robbery in that on 14 November 1991 he together with a number of others robbed the Man Cheong Goldsmith Shop at Tokwawan Kowloon of a quantity of gold ornaments valued at $1.432 million. Then fifth count was possession of arms and ammunition without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance in that on 19 November 1991 at room 804 Ramada Renaissance Hotel, Peking Road he had in his possession a 0.32 calibre home-made semi-automatic pistol and one round of 0.32 calibre ammunition without a licence. The sixth count was also possession of arms and ammunition in that on 20 November 1991 at the Bank of East Asia, Castle Peak Road, Yuen Long he had in his possession two blast bombs, twenty six rounds of ammunition without a licence. The seventh count was conspiracy to rob in that he together with D6, D7and D8 between l5 November 1991 and 20 November 1991 conspired to rob a goldsmith shop at Tai Kok Tsui Kowloon.

3. At the trial the summary of facts as put forward by the prosecutor was agreed by the first applicant's counsel. He was at the time of his conviction 29 years of age and was therefore considerably older than D6, D7 and D8. As to count 3, the robbery charge, the essential facts were these: on 14 November 1991 he together with a number of others who are not applicants on this appeal went in concert to Tokwawan Road. The intention was to carry out an armed robbery at the Man Cheong Goldsmith shop D1 left and returned to the Regal Riverside Hotel to wait for the result. He had arranged for a van to be available near the goldsmith shop as a getaway vehicle. The robbery was carried out with some violence but it was not entirely successful in that one of the robbers was caught by the police. The remaining robbers made good their escape, returned to the Regal Riverside Hotel, where D1 was waiting, with a quantity of gold ornaments robbed from the Man Cheong Goldsmith Shop. Having learnt that one of the members had been caught, D1 immediately checked out of that hotel and he together with the other robbers moved to Room 804 Ramada Renaisance Hotel in Tsimshatsui. In the hotel room D1 melted the gold ornaments and mould them into gold bars and subsequently sold them for $300,000. D1 and the other robbers then split the proceeds. That essentially constituted the facts surrounding the third count.

4. Then on 16 November 1991 D1 received a group of illegal immigrants from China namely D6 Wong Mur-ching, D7 Lau Chun-kwan and D8 Chow Tak-pang. Three days later D1 took them to a goldsmith shop at Tai Kok Tsui and left them there to carry out an armed robbery and he went to the lobby of the Royal Garden Hotel in Tsimshatsui to wait for them. But due to the presence of policemen around the goldsmith shop, D6, D7 and D8 did not carry out the robbery and they returned to the Royal Garden Hotel empty handed.

5. On the same day as a result of information supplied by the robber in the earlier robbery D1 was arrested. When inquiries were made it was found that in a safe inside Room 804 Ramada Renaisance Hotel there was a 0.32 calibre home-made semi-automatic pistol and a 0.32 calibre ammunition which D1 admitted was in his possession: this constituted the rounds for the fifth count.

6. The next day, 20 November 1991 D1 took the police to the Bank of East Asia at Castle Peak Road, Yuen Long where he opened a safe deposit box registered in his name and inside were found the quantities of ammunition and the blast bomb s which constituted the grounds for the sixth count.

7. And in relation to the seventh count, the conspiracy to rob, that arose from the circumstance that the D1 met D6, D7and D8 upon their arrival from China on 16 November 1991 and had conspired with them to rob a goldsmith shop at Tai Kok Tsui.

8. We turn now to the cases of the sixth, seventh and eighth applicants. They pleaded guilty on 24 May 199l to two counts on the indictment as follows. Count 7 they together with D1 between the 15 November 1991and 20 November 1991 conspired to rob a goldsmith shop m Tai Kok Tsui and the count 9, possession of arms and ammunition without a licence contrary to section 13 of the Fire Arms and Ammunition Ordinance in that D6, D7 and D8 between 15 November 1991 and 20 November 1991 had in their possession the following : one 7.62 x 25mm calibre Chinese military pistol, one 9mm Russian military pistol, one 0.22 calibre Russian pistol, twelve rounds of 7.62 x 25mm calibre ammunition, 19 rounds of 9mm calibre ammunition, four rounds of 0.22 calibre ammunition and one pipe bomb without a licence. The circumstances concerning the possession of arms and ammunition count were contained also in facts agreed on their behalf arising from the prosecutor's summary of facts and were as follows. At about 10.58 p.m. on 19 November 1991 the  three applicants D6, D7 and D8 were found in a taxi when it was stopped and upon being searched there were found on D6 the 9mm Russian military pistol which was loaded with six rounds of 9mm ammunition and he had additionally on him 12 rounds of the same ammunition Then on the rear seat of the taxi where D7 had been sitting there was a 0.22 calibre Russian pistol loaded with four rounds of ammunition and a pipe bomb, and found on D8 was the 7.62 x 25mm Chinese military pistol loaded with six rounds of ammunition and he had on him additionally six rounds of the same ammunition. This constituted the facts on which they were charged under the ninth count.

9. The general approach to sentencing on the part of Deputy Judge Pang was that he found little by way of mitigating factors in any of the irrespective cases of these applicants, apart from the fact that they pleaded guilty. He went on to say:

"In passing sentence, I consider it to be my duty to show to you all that the courts in Hong Kong will not put up with violent crimes of this nature; and the innocent members of the public must be protected from people like you."

10. This is an expression of sentiment with which this court would agree.

11. He then proceeded to deal with the case of the first applicant Chan Kwai-lam as follows. He said that he accepted that his plea of guilty and his proposal to give evidence for the prosecution had influenced the other defendants in changing their pleas. But he went on to say:

"If this was a mitigating factor, it would have almost certainly been cancelled out by the key role you played in the criminal activities. As the central figure, you would have attracted a heavier penalty than your co-defendants. In view of what I have said about your possible influence over the co-defendants in their pleas, I am prepared to treat you on the same basis as the other defendants when I consider the appropriate sentences."

12. In respect of the robbery count, Count 3, the judge took as a starting point eight years' imprisonment and in view of the guilty plea gave a discount of one year making it a seven year sentence. In relation to each of the two counts for possession of arms and ammunition he took the starting of seven years and reduced it to six years for the guilty plea. In relation to the seventh count of conspiracy to rob, he took as a starting point six years and reduced it by one year in view of the guilty plea. He considered it proper in a case like this to have passed consecutive sentences which cumulatively would have made it a total of 26 years which globally would have been, in his view, excessive. And having regard to the circumstances, he made the two counts of possession of arms and ammunition concurrent thereby making the total sentence of imprisonment for the first applicant l8 years.

13. We have considered the case of the first applicant Chan Kwai-lam with some anxiety. In particular, the fact that at an early stage, even before the plea of guilty had been accepted, he through his counsel had told the judge that he had given statements to the police implicating the other defendants in the crimes; that was at a stage when the other defendants had maintained their pleas of not guilty. The judge accepted the fact that his proposal to give evidence did influence the others in changing their pleas. This, in our view, should have been regarded as a considerable mitigating factor. The judge thought that this was cancelled out by what he called the key role which this applicant played in the criminal activities. We have examined the statement of facts as agreed before the judge and we cannot accept the categorisation that this applicant played a "key" role. No doubt he played a fairly dominant role in the enterprise but there was no evidence to suggest that he had been instrumental in bringing D6, D7 and D8 from China. The fact that he had met them upon their arrival does not necessarily indicate that he had instigated their illegal entry to Hong Kong. He had arranged for their accommodation, and then had taken them to the vicinity of the goldsmith shop: this clearly placed him in a leadership role, not necessarily a “key” role: if, by that expression the judge had meant that D1 was at the very top of the criminal enterprise. In relation to count 3 he had arranged for the getaway van and then later had arranged accommodation for the robbers. He had been instrumental in melting down the gold ornaments stolen from the goldsmith shop in the third count and had made them into bars which he sold for $300,000. All of this indicated that he had a very considerable role to play. However, to categorise it as the key role might have been a slight over-emphasis.

14. We feel that important policy considerations weigh on the fact of his readiness to cooperate with the prosecution authorities, in order to bring the other defendants to justice, and that this mitigating factor was not totally "cancelled out" by the role he played. It must therefore follow that the judge had erred in principle in his approach to sentence in this case. We would accordingly set aside the sentences imposed by the judge and pass the following sentences instead. In relation to the count of robbery, the third count, the sentence of seven years' imprisonment stands and so does the sentences in relation to the two counts of possession of arms and ammunition, that is to say, the fifth and the sixth counts of six years each. We would not interfere with the sentence of five years’ imprisonment in relation to the count of conspiracy to rob, that is to say, the seventh count; but we would order that the sentences be served as follows. That the counts on the possession of arms and ammunition, the fifth and sixth counts should be served concurrently but consecutive to the sentence on the third count. That would make 13 years. As regards the seventh count, conspiracy to rob, we would order that the first three years of the five years sentence should be served concurrently with the previous sentences thereby making the total sentence of imprisonment for the first applicant Chan Kwai-lam 15 years.

15. As regards the sixth applicant Wong Mur-ching, what the judge did not advert to in sentencing this applicant is the fact that the conspiracy was never carried out. Where a criminal enterprise succeeded to the extent as it did, for instance in the third count, (where ornaments to the value of $1.432m had been stolen) there should be a higher sentence. In relation to the counts for possession of arms and ammunition, the judge had imposed a sentence of six years which in the circumstances appear to us to be correct. But in our view the total sentence of 11 years in the circumstances of this case appears to be excessive. The circumstances whereby this applicant together D7 and D8 came into Hong Kong and in the course of three days came to be apprehended do not show the hallmarks of seasoned criminals. It is a fact that no robbery was in fact carried out and on 19 November 1991, this applicant together with D7 and D8 went back to the Royal Garden Hotel empty-handed. That was the extent of the total harm to this community: the overall sentence of 11 years' imprisonment is in our view excessive. To give effect to this we would discharge the order of the judge and impose the following sentences. On the seventh count, conspiracy to rob, the sentence of five years' imprisonment is to stand. In relation to the ninth count, possession of arms and ammunition without a licence, the sentence of 6 years is to stand; but the first two years of the six years should be served concurrently with the sentence in relation to the seventh count, making a total sentence of imprisonment for the sixth applicant Wong Mur-ching nine years. To this extent, the application is granted and we take the application as the hearing of the appeal and order accordingly.

16. In relation to the seventh applicant Lau Chun-kwan and the eight applicant, Chow Tak-pang, there is this additional fact which the sentencing judge had not taken into account. D7 was aged 20 at the time of conviction and D8 was aged 19. Their roles in the criminal enterprise were virtually indistinguishable from that of D6. Their very young age must however weigh in the scales in considering the proper sentence. The omission to consider this factor renders the approach of the sentencing judge wrong in principle. We would not disturb the respective sentences of five years imposed on them for the seventh count nor the six years on the ninth count but we would order that the first four years of the six years' sentence on the ninth count be served concurrently with the sentence of five years on the count of conspiracy to rob thereby giving a total sentence of imprisonment in relation to the seventh and eighth applicants seven years each. To this extent, the applications for leave to appeal are granted; we treat the hearing of the applications as the hearing of the appeals and make the orders accordingly.