SECRETARY FOR JUSTICE v. LI MAN BIU AND OTHERS

CAAR 4/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 4 OF 2000

(ON APPEAL FROM HCCC 31 & 49 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Background

1. On 13 April 2000, the 1st Respondent (D1) pleaded guilty before Jackson J to a robbery which had been committed with the 2nd and 3rd Respondents (D2 and D3). D1 had given an earlier indication that he would plead guilty. On the same date, D2 and D3 confirmed the pleas of guilty which each of them had entered at the Eastern Magistrates' Court on 2 February 2000. The judge imposed a sentence of four years' imprisonment on D1 and he ordered D2 and D3 to undergo a period of training at a training centre. The matter now comes before this court on the application of the Secretary for Justice (the Applicant), pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, for a review of the sentences imposed on all of the Respondents.

Prosecution's case

2. The amended summary of facts was prepared in some detail and with commendable industry by Ms Agnes Chan, S.G.C. In brief, the prosecution's case was that at about 4.45 p.m. on 21 November 1999, when Chan Yiu-yeung and Ng Mei-hang (the victims), who were married and were trading as usual in their jewellery and money exchange shop on the ground floor at 28 Harbour Road, Wanchai, D1 and D2 rushed in. D1 was holding a pistol and D2 was holding a beef knife. Both weapons were pointed at the male victim and D1 called out that it was a robbery. In his fright, the male victim tried to struggle with D2. In the process, he suffered a number of knife injuries to his face and his fingers, which have been described as being relatively minor. D2 then told both of the victims to take out their money and to put it into a nylon bag. As the money was being put into the bag, the male victim pressed an alarm. D1 and D2 shortly afterwards fled but not before D2 had jumped over the shop counter to seize money from the till. He put this into the nylon bag.

3. Two passers-by, Raymond Ling and Chung Pak-shing, saw D1 and D2 running away, pursued by the shopkeeper, and they also gave chase. A short while later, an off-duty police sergeant, Tam Tak-wing, who was driving his car in Wan Chai, heard shouting and saw the chase in Jaffe Road. He stopped his car and got out. D2 was still holding a knife. The sergeant shouted: "Don't run, police." He caught up with D2 and subdued him, at which point D2 dropped the knife he was carrying. The civilian witnesses helped in the apprehension of D1.

4. A short time later, two other officers intercepted D3 as he ran along Jaffe Road holding the nylon bag which contained the stolen money amounting to ￥79,275 Renminbi. After arrest, D3 said that he was only responsible for getting away with the bag and that he did not know how much it contained.

5. In subsequent interviews, D1 frankly admitted his part in the robbery saying that he had used the pistol to threaten the victims that he would shoot them if they did not take out their money. He also spoke about how he had planned the robbery on the previous day under the direction of someone he called "Ah Man".

6. D2 was equally frank about his part and said that he had accidentally wounded the male shopkeeper with the beef knife he had been holding. He, too, said that Ah Man had directed the operation and that it was Ah Man who had purchased the pistol for $300.

7. D3 told the police that he had agreed to participate in the robbery and that it was his job to receive the money from D1 and D2. He said that it was his understanding that he would get a small percentage of the proceeds and that D1 and D2 would get a higher percentage. D3 was aware of what was intended because he, like the others, had been involved in its planning the day before with Ah Man.

8. We have seen the pistol and the beef knife in court today. There is no question but that these are two extremely frightening weapons. The pistol's appearance is very realistic. This was a copy of a Beretta self-loading pistol which was designed to discharge plastic pellets using compressed gas. It was found to be in working order as an air pistol but, for all intents and purposes, is to be regarded as an imitation firearm because, on expert examination, it was not found to be capable of producing sufficient muzzle energy to be classified as a firearm under the Firearms and Ammunition Ordinance.

Mitigation

9. The principal aspects in mitigation in all the Respondents' cases were that the pleas had been indicated well before the date set for sentencing, and that it was apparent that they had to some extent been manipulated, or even led into temptation, by an older person known to them as "Ah Man". As to Ah Man's identity, about which we shall have more to say later, some assistance was provided by D2 and D3 but it has to be said that in the end this has had no positive result.

10. Emphasis was also placed in mitigation by counsel who appeared in the court below on D2 and D3's comparative youth and their previously clear records. These and other related matters have been emphasised again today by counsel now representing the Respondents, who did not appear in the court below. It was pointed out that D1 was 25 at the time of the offence and that, whilst he had convictions for a variety of offences, he had never previously been sent to prison. D2 and D3 were 17 years old. They had no previous convictions although D2 was on bail for an offence of a different nature at the time of the present offence and had received in the past a caution in respect of an earlier matter. Nevertheless, for present purposes, D2 and D3 were both rightly treated by the judge as persons of previous good character.

Background reports

11. Before passing sentence, the judge called for background reports on all the Respondents and for training centre reports in respect of D2 and D3. It would normally be unusual to call for background reports in such a serious case but the judge had observed from the antecedents that D1 had previously spent a period at Siu Lam and so far as D2 and D3 were concerned that they were comparatively young.

12. In D1's report, reference was made to his tendency to "simplify the incident" by saying that he had committed the offence for "fun and monetary gain". Apparently, D1 had been diagnosed in 1998 as suffering from schizophrenia and had received treatment for three months in Siu Lam starting in November 1998. On his discharge, he was referred to an out-patient psychiatric clinic but he failed to appear for his appointment and was never registered there.

13. D2's report was accurately summarised by the judge as having suggested that D2 would make nothing of his life unless he made a belated and real attempt to find proper employment and to reduce his pleasure-seeking activities.

14. D3's report indicated, despite his apparent youthful looks and what is described as the very close family unit who are presently in court, that:

"... his excessive night activities and association with undesirable peers of triad elements have a strong impact on him. Apparently, he is not found to have exhibited serious trait of oppressive and aggressive type of character, but rather impulsive and immature personality. Under the influence of unscrupulous triad peers (in this case it appears to have been Ah Man) and his adherence to triad sub-culture, he has dragged himself into serious crime."

Sentencing remarks

15. Having outlined the nature of the evidence against the Respondents, the judge in passing sentence had this to say:

"The appropriate sentence following upon conviction after trial for an offence of armed robbery not involving firearms, real or imitation, following in the case of R v Mo Kwong-sang, is of the order of 5 years' imprisonment. Albeit that these defendants were not charged with such an offence but with the full offence of robbery, the appropriate sentence, after trial, for carrying an imitation firearm with intent to commit an arrestable offence is of the order of 5 to 6 years' imprisonment, such an offence being contrary to section 18(1) of Cap. 258; and see (Attorney General v Lam Wing-kwong) Application for Review No. 6 of 1993." (Emphasis added)

16. The judge then gave detailed consideration to the reports which had been prepared about the Respondents' respective backgrounds. He took as a starting point six years' imprisonment for D1, reducing this by one-third for his plea of guilty.

17. In regard to D2 and D3, the judge had this to say:

"Turning, then to (D2), he has come very close indeed to being sent to prison for a similar term to (D1). However, given all that I have been told this morning in respect of him, given his age and his very early plea of guilty, given the fact that he has been in custody since his arrest (a period of just under four months) and that any training centre order that I will make will commence as from today, given that a training centre order has the benefit of subsequent supervision, and perhaps most importantly, bearing in mind his co-operation following his arrest with the police, which co-operation is continuing concerning Ah Man, it seems to me that both his interests and the public interest are best served by sending him to a training centre, and I do so.

In the light of all that Mr Percy said to me this morning in mitigation, and it is in my view powerful mitigation, (D3) will also go to a training centre." (Emphasis added)

We should pause here to say that earlier the judge had said that D3's participation was "somewhat less serious" when contrasted to the roles played by the others who were involved. The judge went on to say:

"How long he and (D2) will stay there in the training centre will depend very largely on their conduct and progress. I think, however, I should add this, that it is not a matter directly for me but I would express the hope that in the event of their continuing co-operation with the police concerning Ah Man, such co-operation will be taken into consideration by the Commissioner of Correctional Services when he comes to determine the period of their detention."

18. Finally, the judge gave a well deserved commendation for the public-spiritedness and courage of the various civilian witnesses and the off-duty police sergeant whose combined efforts had secured the arrest of the Respondents.

The application

19. The Applicant has submitted that the sentences imposed by the judge were manifestly inadequate and/or wrong in principle because they failed to reflect the gravity of this offence. In particular, Mr Chapman, on behalf of the Applicant, contended that the six-year starting point for a robbery such as this, involving the use of an imitation firearm in a jewellery and money exchange shop, was substantially out of line with the sentencing approach adopted by this court. The victims had been threatened with a pistol and one of them had also been wounded with the beef knife. In Mr Chapman's submission, a sentence of at least ten years after trial would have been appropriate as the starting point bearing in mind previous decisions of the Court of Appeal to which he referred us.

20. As support for his argument, he cited a number of cases which bear some similarity to this one, where the sentences had ranged from between ten to fifteen years. In particular, he directed our attention to R v Hui Fuk-ming, CACC 513/92 (unreported); R v Yu Tai-wing [1995] 1HKC 837; R v Wong Chi-fai and Anor., CACC 280/96 (unreported).

21. Ms Remedios, on behalf of D2, whilst not heavily relying in her oral submissions on the proposition she had put forward in her written reply that the starting point really only applied to D1 who was sent to prison said that, even for an offence as serious as this, the judge was entitled to take into account the criminality of a much younger offender and to decide that prison was not appropriate.

22. It is unnecessary to review the cases to which we were referred in any detail. It has long been the policy of the courts to put offences of the kind where firearms, real or imitation, are used in an extremely grave category and to mark the gravity of those offences by deterrent sentences. When an imitation firearm is used to frighten victims in the furtherance of robbery as it was in the present case, as opposed merely to being carried for some unlawful purpose, or carried during the course of an actual robbery, this will inevitably be an aggravating factor. In Yu Tai-wing (above), an overall starting point of ten years' imprisonment was considered appropriate where an opportunist robber embarked on his enterprise alone and in a public place, causing no injury to his victim. In Wong Chi-fai (above), a twelve-year starting point was described as unobjectionable where two robbers, using an imitation firearm and a long knife between them, had tied up their victims in the course of robbery.

23. Mr Chapman's next submission was that neither of the authorities to which the judge made reference, namely, Mo Kwong-sang (above) and Lam Wing-kwong (above), were relevant to fixing an appropriate starting point in the present case. Putting this another way, all the cases of relevance to which we have very helpfully been referred by Mr Chapman, were never mentioned or apparently considered by the sentencing judge.

24. It is well known, as indeed it was to the sentencing judge in the present case, that Mo Kwong-sang provides sentencing guidelines in robberies where the culprits have been armed with knives or other dangerous weapons falling short of firearms, real or imitation. This case provided no useful guidance of any relevance in fixing a starting point in the matter presently before us, and we fail to understand why the judge made reference to it.

25. The Attorney General v Lam Wing-kwong, which was also referred to by the judge in his sentencing remarks cited earlier, concerned the offence of carrying an imitation firearm with intent to commit an arrestable offence. This case was considered by the Court of Appeal in R v Hui Fuk-ming (above), where a fifteen-year starting point for a robbery on the staff of a health centre was held to be appropriate. In Hui Fuk-ming's case, a firearm was seen by the victims in the course of the robbery. Macdougall VP observed, in the course of the judgment at page 8, following a reference to Lam Wing-kwong:

"If an offender takes the matter one step further and puts his intention into action by actually carrying a genuine or an imitation firearm during the course of a robbery, his conduct is more culpable and therefore deserving of a more severe punishment. Regrettably, the use of firearms, both genuine and imitation, has become far too prevalent in Hong Kong in recent times. Such conduct calls for the imposition of heavy sentences, and the general level of sentencing has increased accordingly."

26. It is again apparent to us that the judge was in error in the case presently before us when he took Lam Wing-kwong as a relevant authority which gave any real assistance to sentencing these Respondents.

27. A further argument presented to us on the Applicant's behalf was that the judge had failed to pay sufficient regard to the public interest and the need for deterrence of potential offenders when he imposed training centre orders on D2 and D3. He pointed out that while a training centre order can last for as long as three years, this was not the sort of case where a sentence of such short duration was appropriate.

28. Mr Chapman also submitted that the judge had placed undue weight on the youth of D2 and D3. In this regard, Ms Remedios advanced an interesting argument to the effect that the courts in Hong Kong should not maintain a policy of regarding offenders of the age of about 15 and above who are involved in serious offences as being liable to the same or similar sentences as adult offenders. She maintained that the age of D2 was a significant factor in mitigation, albeit he was 17 years old when he committed the offence, and that the judge was fully entitled to give this aspect of mitigation weight. She also emphasised in this connection the role played by "Ah Man" who, we are led to believe, is an ex-police officer, who brought his influence to bear on these younger offenders. As to this, whilst it may be a gravely aggravating feature in the sentencing of Ah Man if ever he is brought to justice and this aspect of the case is proved against him, we do not see this as having any real weight in mitigation in a case of this gravity when the Respondents were both willing and able followers.

29. We have no doubt that for an offence of this seriousness, it must be regarded as almost inevitable that a substantial sentence of imprisonment will follow. The youth, unless it is extreme youth, of those who commit offences of this kind has not provided strong mitigation in the past and we consider that it could only rarely do so now for offences of this seriousness. This has been made abundantly clear in a number of previous decisions of this court. It suffices to refer to Attorney General v Yau Wing-hong [1995] 3 HKC 95, where Power VP, at page 98D, said:

"The guidelines in Mo Kwong Sang were amplified in R v Chung Man Kit [1990] 1 HKC 87 where the court said at 89A:

'Where a serious robbery is concerned the youth of those who commit them is not a strong mitigating factor.'

That consideration was again referred to in A-G v Li Chi Ko [1987] HKLR 1233 in which it was stated:

'It is settled law that, save in exceptional circumstances, a term of imprisonment ought to be imposed in a case of serious robbery as this one was, and youth of itself was not such an exceptional circumstance, although extreme youth might be.'

'Extreme youth' in the case of Li Chi Ko - the defendant was just over 15 - is an exceptional circumstance. We are satisfied that a person older than that cannot plead 'extreme youth'."

30. We can see no reason in the present case to depart from the policy of this court expressed over years gone by in regard to youthful offenders.

31. Looking at D3's involvement, Mr Chapman said that it was apparent from the agreed facts that D3 had entered into the scheme of robbery in full knowledge that an imitation firearm and a knife would be used and, in that knowledge, he willingly lent his assistance. He had participated in the planning of the offence and his part was to take the proceeds away from the scene of the crime as soon as his accomplices had achieved their purpose. Mr Chapman submitted that the judge was wrong to have approached D3 as having played a lesser part for which he would be entitled to a reduced sentence.

32. D3 was, in our view, in taking this role, acting in a similar capacity to the getaway driver used to take away the offenders or the proceeds of the crime or both, or a lookout who, with full knowledge of the crime which his accomplices intend to commit, lends his assistance to the enterprise. Whilst it is true that D3 carried no weapon himself, this cannot have amounted in itself to a mitigating factor given that he well knew about the weapons being carried by his accomplices.

33. It follows, therefore, that we rejected the well argued submission on D3's behalf, made by Mr Mitchell-Heggs, that a distinction could properly be drawn between D3 and the other participants to take into account the different role played by him. The mere fact that the Respondents have adopted different roles in this robbery was, in our opinion, insufficient justification by itself for making any distinction between them on sentence.

34. Finally, we should make reference briefly to the so-called cooperation with the authorities of D2 and D3. Both of them named "Ah Man" and D2 in particular gave some additional information which led to the arrest of the suspect. However, the assistance was little short of useless because, when "Ah Man" was put on an identification parade recently, D2 and D3 failed to identify him. We were wholly unimpressed by Ms Remedios' attempt to persuade the court that in the six months between their arrest and the identification parade, D2 and D3 had forgotten what Ah Man looked like. This was patent nonsense as was the suggestion put forward on D3's behalf that he might have been put off by the fact that all the participants on the identification parade were wearing shower caps to cover their heads. Ah Man was well known to D2 and D3 by their own accounts to the police and to the probation officer who prepared their background reports. Accordingly, the assistance they have provided cannot be regarded as material to their mitigation.

35. It was submitted by Ms Remedios that the judge appeared to have given some credit to D2 and D3 for their cooperation up to the stage of sentence and that this was warranted. By that stage, Ah Man had been arrested. She further submitted that it would be wrong in principle for this court to interfere with the credit which the judge had given by reason of the subsequent failure of these Respondents to identify Ah Man at the parade.

36. We were not by any means convinced that the judge in fact gave any credit for cooperation. He appeared rather to have intimated that the period in custody might be reduced by the authorities if the cooperation continued. If in fact, contrary to our reading of the judge's comments, credit was given for such cooperation, it ought not, in our view, to have been given at that stage. As events have proved, it was premature to do so and subsequent events have demonstrated why it was premature for credit to be given at the time sentence was passed.

Conclusion

37. We bear in mind, so far as all of the Respondents are concerned, that an upward review of sentence, which we consider to be inevitable in the light of what we have already said, would involve very considerable increases in sentence. The seriousness of the present case and past sentences imposed by this court in similar situations have led us to the conclusion that the sentences imposed in the court below were manifestly inadequate so far as D1 is concerned, and wrong in principle so far as D2 and D3 are concerned. This application, therefore, must be allowed.

38. We quash the sentence of four years' imprisonment imposed on D1 and in its place we substitute a sentence of seven and a half years, reducing a starting point of twelve years to eight years to take into account the plea of guilty and by making a further reduction of six months to allow for this being a substantial upward review of sentence.

39. We quash the training centre orders made in the cases of D2 and D3 and, taking the same starting point of twelve years and given all the circumstances, we think that it would be appropriate to substitute their present sentences with a term of six and a half years' imprisonment in each case.

40. D1 is therefore sentenced to seven and a half years' imprisonment and D2 and D3 are both sentenced to six and a half years' imprisonment.