CACC 338/2004
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 338 OF 2004
(ON APPEAL FROM HCCC NO. 227 OF 2003)
___________________________
BETWEEN
HKSAR
Respondent
and
LAI KAM TONG 賴錦棠
1st Applicant
CHUNG YUK SHING 鍾育成
2nd Applicant
___________________________
Before : Hon Woo VP, Stock JA and Yeung JA in Court
Dates of Hearing : 20 January 2005
Date of Judgment : 20 January 2005
Date of Reasons for Judgment: 3 February 2005
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REASONS FOR JUDGMENT
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Hon Woo VP (giving the reasons for judgment of the Court):
Introduction
1. The first applicant Lai Kam Tong (“A1”) and the second applicant Chung Yuk Shing (“A2”) sought leave to appeal against sentence. At the conclusion of the hearing on 20 January 2005, we dismissed their applications. Our reasons appear below.
2. A1 faced a count of robbery, which was Count 1, and A2 faced both Count 1 and another count of robbery, Count 2. Under Count 1, 7 persons were charged, including A1 as D2 and A2 as D4.
3. The trial took place before Tong J in the Court of First Instance. After failing to challenge the admissibility of his cautioned statement made to the police, A1 pleaded guilty. On behalf of A2, counsel made a challenge to the admissibility of a surveillance report in respect of Count 1, which failed. A2 then pleaded guilty to Count 2, and Count 1 in respect of him was ordered to be left on the court file.
4. The judge adopted the respective starting points of 10 years’ and 11 years’ imprisonment for Count 1 and Count 2. He gave A1 one-quarter discount for his plea, reducing the sentence of 10 years to 7 years and 6 months. He further reduced the sentence by 6 months, to take into account A1’s role merely as a lookout in the crime, making the sentence imposed on him 7 years’ imprisonment.
5. In respect of A2, the judge gave him a full one-third discount for his plea and passed a sentence of 7 years and 4 months’ imprisonment on him.
The facts
6. The robbery under Count 1 took place on 17 February 2003. The victim was a member of the staff of a shop in the Peninsula Hotel. She had the practice of depositing the proceeds of the previous day’s sale into the Hong Kong Bank in Ocean Centre, Tsimshatsui every morning. On 17 February 2003, she was carrying about $61,000 and Japanese Yen 322,000 in a plastic bag to the bank. As she walked past the ground floor of Hankow Centre, two men, D5 and D6, rushed up to her, one hitting her head with a metal pipe while the other threw pepper in her face and snatched the plastic bag containing the money which she was carrying.
7. Police surveillance evidence revealed that on 17 February 2003, shortly before the robbery took place, A1 was waiting at the junction of Middle Road and Hankow Road and regularly talking on his mobile phone. At the same time, D1 was also observed in Hankow Road using his mobile phone.
8. There was also evidence as to the activities of D1, D3, A2(D4), D5 and D6 that took place earlier on the day of the robbery. Prior to 17 February 2003, A1 was seen by police surveillance teams in the vicinity of the scene. In particular, on 27 January 2003, A1 was seen inside the Hong Kong Bank Ocean Centre Branch shortly after 10 am, when the victim was depositing money. On 4 February 2003, A1 was seen with D1.
9. All the accused, except D7, were either arrested at the scene or in the vicinity shortly after the robbery.
10. In respect of Count 2, the robbery took place on 20 December 2002. At about 2:40 pm, a Korean man Mr Jung and his assistant Ms Wong went to the Hong Kong Bank at Ocean Terminal and made a withdrawal of over $2 million in cash. There was no facility at that branch of the bank for such a large sum of money to be handed over in a private room, so the money was counted and handed over by a bank clerk at the counter in full public view.
11. After the withdrawal of the money, at 3:23 pm, carrying the money he had withdrawn in a brief case, Mr Jung, together with Ms Wong, went down the escalator to the second floor of the shopping centre. They heard a group of people rushing down the escalator behind them. A man from the front at the same time suddenly rushed up behind Ms Wong and grabbed hold of her by the neck, and pushed her to the floor. At the same time, two or three men including A2 grabbed hold of Mr Jung and the briefcase he was carrying. Mr Jung struggled to hold onto the briefcase tightly and cried out for help. A2 hit Mr Jung on the head with a foot long iron pipe. Mr Jung’s head bled and he sank to the floor. The men punched and kicked him. Mr Jung released his grip on the briefcase and it was snatched away. The men fled.
12. The victim of Count 1 suffered a laceration to her forehead. In respect of Count 2, Mr Jung sustained a 9 cm laceration over the occipital scalp region and tenderness over his left shoulder with a decreased range of movement. Ms Wong suffered pain over her neck and left shoulder.
Grounds of appeal
13. The main ground of appeal raised on behalf of both applicants is that the starting point adopted by the judge in respect of each count was manifestly excessive.
14. On behalf of A1, a further complaint is raised that the judge failed to consider that A1 did not know that the robbery would be a head-bashing one when he acted as a lookout for the other culprits, or alternatively the judge failed to give credit to A1 that he did not know that the robbery would be a head-bashing one and failed to give sufficient discount to A1 when adopting the starting point of 10 years.
15. On behalf of A2, it is contended that the judge erred in fact in finding that the case, Count 2, was “also a case of head-bashing robbery”, and was well premeditated with “observation and planning before the actual robbery”. It is further contended that the judge erred in principle in attaching excessive weight to the fact that “the amount (taken) is very large and no part of it could be recovered”.
The starting point
16. The sentencing guidelines in respect of robbery and head-bashing robbery are well settled in R v Mo Kwong-sang [1981] HKLR 61 and HKSAR v Ma Ping Wah [2000] 2 HKC 566 respectively.
17. In Mo Kwong-sang , this Court laid down the guidelines for robbery:
“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.
If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.
If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.
These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.
These guidelines are intended to apply to those who are convicted after a trial….”
18. In Ma Ping Wah , this Court stated at page 574B:
“… in view of the evidence with which we have been provided, whilst we do not consider that any general changes need to be made to the Mo Kwong Sang
19. Regarding Count 1, police surveillance evidence clearly depicted the activities of various defendants before and on the date of the robbery, showing that 7 persons were involved in checking the movements of the victim and the preparations made for carrying out the robbery. The victim was hit on the head with a metal pipe. This qualified it to be a “head-bashing” robbery under Ma Ping Wah . However, in both Mo Kwong-sang and Ma Ping Wah, the question of the robbery being premeditated and well planned was not specifically referred to. In our judgment, this is a serious aggravating factor. At least two persons, namely D5 and D6, were involved in physical violence to snatch the bag containing money from the victim. Taking into account all the circumstances, we cannot say that the starting point of 10 years’ imprisonment adopted by the judge was manifestly excessive, although we agree with the view of Mr Saw SC, counsel for the respondent, that it was at the top end of the scale.
20. Regarding Count 2, we do not accept the submission of Mr Wong, counsel for A2, that there was insufficient evidence to show that the robbery was premeditated and well planned. Mr Wong argued that as the counting of the money in public view took about 40 minutes, it would be possible for A2 and the other culprits to have seen that and come up with a decision on the spot to rob Mr Jung. It appears to us that Mr Wong was putting A2’s case on the basis that he and the other culprits were waiting in the vicinity to look for robbery victims (which would involve premeditation and planning), or else it would be most unlikely that A2 or anyone of the group would be able to summon the others to commit the robbery so instantaneously upon Mr Jung leaving the bank. Moreover, even where money was counted over the counter, it would not be apparent to a viewer at the commencement of the counting that so much money would be handed over. We agree with the view taken by the judge that it was mostly unlikely that on seeing the large amount of money being counted over the counter, A2 or one his accomplices could immediately summon another 2 or 3 people who would so speedily make themselves ready to carry out the robbery upon the departure of Mr Chung and Ms Wong from the bank. The fact that iron pipes similar to those used in the robbery of Mr Jung were found at A2’s home also militates against Mr Wong’s argument that it would not be difficult to get hold of an iron pipe when the idea of robbing Mr Jung was formed, presumably suggesting that metal pipes are easily at hand in popular shopping arcades.
21. Mr Wong also contended that the case should be viewed as being less serious than one where the robber bashed the victim’s head before taking the money. He emphasised that it was because of Mr Jung’s tightly holding onto the briefcase containing the money that he was hit on the head. We must say that this is a distinction without any difference as far as seriousness of the offence is concerned.
22. What makes this offence more serious than Count 1 is that about 4 persons were involved in carrying out the robbery and both victims were attacked. The injury suffered by Mr Jung was also more serious than that suffered by the victim under Count 1.
23. In the circumstances, we are of the view that the starting point of 11 years’ imprisonment adopted by the judge is not manifestly excessive, while we also agree with the submission of Mr Saw that it was at the top end of the scale.
A1’s role
24. On behalf of A1, Mr Chan submitted that he did not know that the robbery would be a head-bashing one, and that Ma Ping Wah should not apply.
25. This point was not raised in those terms on behalf of A1 when he was before the judge. There was no submission that Ma Ping Wah should not be followed. It was only submitted that
“… according to his statement to the police, he in fact, did not know how the robbery would be committed by the other accused.”
26. Mr Chan referred us to para 14 of the Summary of Facts admitted by A1 before the judge. The relevant part of which referred to the statements that he had given to the police. It reads:
“[A1] said that he was not told exactly what the matter was about but he admitted that the offences he contemplated were robbery and fighting although he did not know it was going to be a head bashing robbery.”
27. Based on this, Mr Chan submitted that there was no admission made by A1 that any weapon would be used in the robbery or that there was going to be head bashing. He relied on SJ v Wong Kwong Fei & Anor [1998] 1 HKC 739, a copy of which had been provided by this Court to counsel, to invite this court to conduct a Newton enquiry as to the knowledge, or rather the absence of it, on the part of A1 as to the modus operandi of the robbery to be committed by the other culprits, including the use of weapons.
28. This contention that A1 did not know that someone’s head was going to be bashed and that this constitutes mitigation is an unrealistic submission. A1 knew that there was to be a robbery. He knew – because he says so – that there was to be fighting. It follows that he contemplated violence upon someone. His contention that he did not know that head bashing would take place is meaningless in terms of mitigation. This was a well-planned robbery of somebody who was going to be depositing money into a bank. A1 had been seen on two occasions prior to the robbery in the vicinity of the scene where the robbery eventually took place, and on one of these occasions he was with D1 (para 10 of the Summary of Facts). The suggestion that a bash on the head, if it proved necessary to effect the robbery, was outwith A1’s contemplation as a possibility is an outlandish suggestion on the facts of this case, and there is not even a contention, let alone evidence, put forward either before the judge or before us that had it been within his contemplation as a possibility he would not have taken part. It is all too easy for a lookout to say that he does not know precisely what will happen, but (as was said in Cheng Shu-keung below) that avails him little if he joins an enterprise where the type of violence used is as a matter of common sense the type that may well be used. He cannot possibly be regarded as having excluded from his contemplation that such violence as may be used will be in any way limited either in scale or in the part of the body that will be attacked. The same reasoning was applied in Wong Kwong Fei , where this Court said at p 743D:
“In our view it tests credulity to the utmost to ask a court to accept that a lookout in a planned robbery was not aware that arms would be used.”
29. In this regard, we accept the submissions of Mr Saw that A1’s knowledge as to how the robbery was to be executed must be assessed in the light of the degree of planning and organisation which obviously included his presence at the scene some days before the robbery in the company of another accused. An irresistible inference could be drawn that he was involved in the planning of the robbery, which contradicted his little knowledge in how it was to be committed by the other defendants, as asserted in his cautioned statements.
30. In these circumstances, there was no need for the judge to hold a Newton enquiry and for the same reason we declined the invitation to hold one at the hearing of this appeal. Furthermore, the judge was quite right not to treat the suggestions as to knowledge as mitigation.
31. As for the fact that A1 acted as a lookout, this Court has regularly declined to apportion blame and adjust sentences to any marked degree when defendants are parties to a joint enterprise. Mr Saw draws our attention to a number of authorities bearing out this practice.
32. In The Queen v Cheng Shu-keung , Crim App 369 of 1992 (unreported), Macdougall JA stated at p 3:
“This court has said on many occasions that the driver of a getaway car plays no less important a role in the commission of a robbery than that which is played by those who actually enter the premises and participate in the events that occur there. We also emphasise that where a person embarks on what he knows to be an armed robbery of a jewellery shop it is of no avail to him simply to assert that he did not realize that a firearm would be carried by one of his accomplices.”
33. In The Queen v Lau Cheung-chan, Crim App 192 of 1992 (unreported), Power VP said at p 4:
“Mr. Percy next argued that the judge failed to apportion the blame between the applicants in a proper manner. As to this submission, we can only observe that in circumstances such as this, the participants must bear equal responsibility for what was done. The possibility of a degree of violence being used when robberies of this nature are embarked upon must be taken to be in the minds of each of the participants.”
34. In Attorney General v Sin Wai-lun [1988] 1 HKLR 580 CA, the Court adopted the principle stated in R v Brett . It stated at p 582C-E:
“Counsel for the Attorney General submits that the sentence was wrong in principle and manifestly inadequate. He relies on the unreported case of R. v. Brett , 28th July 1975, in which Roskill, L.J. said:
‘In our view there is no distinction in a crime of this kind to be drawn between those who actually use the violence and those who stand outside and though not using violence are ready to drive away, to kidnap, or perform whatever other task may be appropriate.
If this Court or a trial judge is dealing with a case of armed robbery of a bank at gunpoint or with iron bars, or of a security van carrying large quantities of notes to a branch of a bank, it does not stop to consider whether a particular prison actually held up the cashier or held up the guard, had a gun or had an iron bar or was the driver standing outside ready to drive away. All are equally guilty because without each playing his full part the crime could not be perpetrated.’
That was, of course, a case of armed robbery, but we are satisfied that the principle is the same.”
35. A holding in Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139, at 144, Stuart-Moore VP observed:
“It is trite that where two people set out to commit a crime together, each taking a different role, but with an awareness of what the other is proposing to do, there should be no distinction made between their sentences based on the roles they have played. Examples of this kind are commonly to be found in cases where a lookout is used at the scene of a crime or where the driver of a vehicle knowingly conveys the participants to and from the scene of the crime. Each plays a vital role in the joint venture and each is liable to be sentenced on an equal footing with the others engaged in the enterprise. If the mastermind of a sophisticated and serious criminal enterprise is revealed, he will, by reason of this additional factor, sometimes receive a heavier sentence than his accomplices.”
36. In the present case, the judge said:
“Although I am not suggesting that the role of a lookout is not important in a robbery, it is, after all, relatively a lesser role which I believe the court should recognise to some extent. I will therefore further reduce D2’s sentence to 7 years.”
37. Thus, the judge had given a reduction of 6 months for the lesser role that A1 played in the robbery. We must say that A1 should count himself lucky for this.
A2’s role
38. The complaint that the judge had attached excessive weight to the fact that the amount robbed was a very large sum and no part of it had been recovered in sentencing is not supported by facts. What the judge said was:
“Although it is often said that the amount involved in the robbery is not the most important factor, but when the amount is very large and no part of it could be recovered, I do not think the court can ignore this aspect in determining the proper starting point.”
39. It does not seem to us that the judge had placed too much weight on this aspect of the admitted facts. Anyway, we consider the large amount involved in the robbery and the fact that no part of it was recovered is a relevant factor to be taken into account in sentencing. The criminality of a robbery of a large sum of money may be said to be the same as that of a robbery of a small sum. However, depending on the victim’s financial circumstances as well as the amount involved, the amount of the money stolen may well have different effect on the victim, whose plight should also be a concern of the courts. Moreover, the planning and organisation for a robbery of a large amount may well be more detailed and careful than that involved in a chance robbery of a small sum.
Conclusion
40. For the above reasons, both of the applications of A1 and A2 were dismissed.
(K H Woo)
(Frank Stock)
(W Yeung)
Vice-President
Justice of Appeal
Justice of Appeal
Mr D G Saw SC, DDPP and Ms Mickey Fung GC, both of the Department of Justice, for the respondent
Mr Chan Siu Ming, instructed by Messrs Y S Lau & Partners, for the 1st applicant
Mr Newman H W Wong, instructed by Messrs Lee & Chow, for the 2nd applicant