THE QUEEN v. CHAN KWAI TO

-------

-----------------

JUDGMENT

-----------------

Silke, V.-P.

1. I have had the opportunity of reading in draft the judgment about to be delivered by my Lord Fuad and am in agreement with it. I too would dismiss the application.

Fuad, V.-P.:

2. On 24th October 1989 the applicant, Chan Kwai To, appeared before Judge Gall, sitting as a Deputy Judge of the High Court, as D3 on an indictment charging him jointly with two other men (D1 and D2) with robbery (Count 1). He was also jointly charged together with D2 with causing grievous bodily harm with intent on the same occasion (Count 2). He pleaded guilty to Count 1 and not guilty to Count 2.

3. When the applicant appeared, this time before Judge Sharwood, sitting as a Deputy Judge of the High Court, on 25th April 1990 the Crown offered no evidence against him on Count 2 and he was thereupon acquitted of the grievous harm charge. He was sentenced by Deputy Judge Sharwood to 8 years' imprisonment on the robbery charge (Count 1) on 15th May 1990 and now seeks leave to appeal against sentence.

4. The agreed facts relating to the robbery were that it took place on 20th January 1984 at the Kwun Tong premises of a company owned and operated by three brothers. They run a combined motor car sale and transportation business. At about 2:15 p.m., the applicant with his two confederates went into the company's premises. They had some beef knives and metal wire with them. A fourth man, still at large, acted as their look-out. A robbery was announced. The brothers struggled with the intruders and were injured in varying degrees in the process. One of the men (D2) snatched the Rolex watch from the wrist of one of the injured brothers (it later fell to the floor and was eventually recovered by its owner).

5. The robbers ran off, chased by two of the brothers. Some construction workers from a site nearby joined in the chase. One of the robbers (D1) was caught but D2 and the applicant managed to escape.

6. One of the brothers had a laceration to the palm of his right hand caused by the knife held by D2. The second suffered a deep cut wound to his right forearm caused by D1 which required 13 stitches. The third brother received multiple chop wounds, including a 3 cm cut on his left knee closed with 4 stitches; a 7 cm cut on the calf of his left knee which went through the muscle and needed 16 stitches; a cut wound on his left thumb, partially cutting the tendons, closed with 17 stitches; a cut on the calf of his right knee deep to the bone which had to be treated with skin grafts and sutures; a cut on his chest, cutting through muscle and vessels and requiring 6 stitches; a cut from his right collarbone to his arm pit which needed 12 stitches; and a cut on the palm of his right hand which severed the tendons of the index finger and the cutaneous branches of the median nerve, resulting in numbness and loss of function of his hand. This terrible wound needed no less than 40 stitches. Two of his fingers remain numb due to the severing of the nerve.

7. The applicant, who was 18 years and 10 months old and unemployed when the robbery was committed, had a previous conviction in May 1985, when he was fined $500 for theft. On the same occasion he was convicted of assault occasioning actual bodily harm and ordered to be detained in a Detention Centre. On appeal to this Court the order was set aside and he was placed on probation.

8. When he was arrested in connection with another matter, the applicant immediately confessed to this robbery and pleaded guilty at the first opportunity.

9. When sentencing him, the judge said this to the applicant:

"Your case is different. You were not caught red-handed, and therefore I can attribute a greater degree of remorse to you in your subsequent conduct and in your pleas of guilty and your co-operation. You are somewhat younger than the 1st accused, the 1st defendant. It appears that at least in the confrontation with one of the victims you did not have a knife. It is possible that things developed beyond your contemplation and beyond your expectation. Nevertheless, you went along with a gang knowing what was going to happen, and very much part of the joint enterprise.

 

        I think I can distinguish your case on the grounds that there is more remorse to be attributed to your plea of guilty, on the grounds that you are less involved in the slashing of - or that you are not involved in the slashing of victims, on the grounds that you don't have a previous record for robbery, on the grounds that you are somewhat younger than the 1st. I sentence you to 8 years imprisonment."

10. In the grounds of appeal which he drafted himself, he asserted that due to his youth he had been led astray by others. He was there merely to carry away the property which would be stolen. He had not carried a knife. He had co-operated fully with the police and had pleaded guilty as soon as the opportunity had presented itself. While serving his sentence he had thought the matter over carefully and had become very repentant. He asked for a fresh chance.

11. Before us, Mr. Ronald Tang (who did not appear in the Court below) submitted that although the judge had not mentioned a starting point, in the light of the age of the applicant, his plea of guilty, and the part he had played in the robbery, the judge's starting point must have been 11 or 12 years' imprisonment and this, in all the circumstances, was too high. If, as he contended, the judge had used a proper starting point of say 8 or 9 years then an appropriate sentence would have been in the region of 6 years.

12. As regards the precise role played by the applicant in relation to the violence done to the three victims during the robbery, there was a measure of confusion. On 24th October 1989 Crown Counsel told Deputy Judge Gall: "[the applicant] joined in at this stage and chopped [one of the victims] on the left leg, chest and right leg." Counsel then appearing for the applicant confirmed that these (and other) facts were agreed. The transcript shows that all the counsel concerned agreed that sentencing should be postponed until after the trial of outstanding charges.

13. When Deputy Judge Sharwood had the applicant before him for sentence on 15th May 1990 he was handed a written statement of admitted facts, which he read to himself. Included in that document was the following: "D1 and [the applicant] confronted [one of the victim] in another office, D1 carried a beef knife. D2 and [the applicant] struggled with [ one of the victims]." On this occasion both the Crown and the applicant were represented by counsel who had not earlier taken part in the proceedings. In an exchange with counsel for the applicant, the Deputy judge made clear his understanding of the position, when he said "..... on the basis that whereas the 1st defendant had a beef knife in confronting the second victim, your client did not. Although he joined in the struggle, he was not the one who wielded the chop blow." Both counsel agreed that this was the basis upon which sentence should be passed.

14. It is now necessary to refer to the sentence imposed upon D1. He pleaded guilty to the joint count of robbery and to Count 3 in which he was charged alone with causing grievous bodily harm, with intent, to one of the brothers. It was admitted that he was armed with a beef knife when he and the applicant were struggling with one of the victims and that while they were running away he turned and slashed one of the brothers pursuing him. This was the injury to that victim's right forearm which required 13 stitches.

15. D1 was 22 at the time of the robbery and had been previously convicted of robbery in May 1986 when he was sentenced to 2 1/2 years' imprisonment. When sentencing him to 10 years' imprisonment on the robbery charge and to 5 years' imprisonment on the grievous harm with intent charge (the sentences to run concurrently) Deputy Judge Sharwood said that it was an exceptionally serious case where at least two of the gang had been armed with knives. He said it was a well-planned robbery which had ended badly due to the resistance put up by the victims. It was, in the judge's view, very difficult to imagine a more serious robbery although a group of men, armed with guns, robbing a bank, might be. He said he would take into account D1's plea of guilty but had to view it in the context of his having been caught red-handed.

16. The aspect of the case which troubled this Court, and which was discussed with counsel during the hearing of the appeal, was whether the violence done during the course of the robbery could legitimately be taken into account against the applicant when sentencing him having regard to the fact that the prosecution had accepted that he himself had not carried or used a weapon, coupled with the fact that the applicant was acquitted of the grievous bodily harm with intent offence charged in Count 2 after no evidence had been offered against him on that Count.

17. In my judgment, on the facts admitted by the applicant, the judge was fully justified in making the observation: "Nevertheless, you went along with a gang knowing what was going to happen, and very much part of the joint enterprise." It will be recalled that it was accepted on behalf of the applicant that, with D1, he struggled with one of the victims whilst D1 was armed with a beef knife. This was the victim referred to as "the third brother" at  the beginning of this judgment, the victim who received multiple and quite dreadful injuries. It could not possibly be said that the applicant was a secondary participant to the robbery who played a minor role.

18. When violence resulting in injury is inflicted during a robbery, the prosecution has a discretion whether or not to include a count specifically charging the appropriate degree of assault. Provided the violence, and its effect, is proved or conceded the sentencing court will always take it into account against all active participants whether they actually inflicted the injuries or not.  In my view, the fact that no evidence was offered against the applicant on Count 2 (resulting in his formal acquittal on that count) should not be taken to derogate from the seriousness of the robbery on the facts admitted by the applicant.

19. It may be that D1 who himself caused such terrible injuries to "the third brother" was fortunate in the totality of the sentences he received, but in all the circumstances, this would not justify any reduction in the sentence imposed on the applicant which, in my view, was not a day too long. Therefore I would dismiss the application.

Penlington, J.A.:

20. This appeal raises, inter alia, the question of the proper way defendants should be indicted for a robbery in the course of which serious injuries have been inflicted on the victims.

21. There is clear authority that if the defendant is alleged to have carried a firearm while robbing, separate counts for the robbery and for carrying the firearm are proper: R. v. French (1982) 75 Crim. App. R. 1. That case also decided that sentences for both counts should be consecutive, provided the defendant is not sentenced twice for the same offence. In A.G. v. Chan Kin-chung and anr. 1980 H.K.L.R. 642, an application for review, a concurrent sentence for wounding during the course of a robbery was made consecutive, which clearly is correct. The actual wounding, while committed during the robbery, is a separate offence and should be treated as such in the same way as an offence of rape committed during such a robbery. However as the offence of robbery requires the use or threat of force, if the violence was not serious i.e. tying up or a minor assault, the Crown may well not lay an additional charge and the degree of violence will be reflected in the sentence for the robbery. In French at p. 5 Lord Lane said that as the carrying of a firearm in a robbery was a separate offence it was impossible or at least anomalous for the sentences to be concurrent even though the offences formed part of the same transaction.

22. Here D1, who was convicted of both a serious armed robbery and a dreadful wounding, should clearly have received consecutive sentences for those offences. Because he was not so sentenced the applicant ("D3") who, in addition to other mitigation, was acquitted of the wounding, has received a sentence which, it is submitted, does not reflect that acquittal. However it was not a ground of appeal that the sentences were such as to cause D3 to have a sense of grievance.

23. The manner in which this indictment was dealt with was unfortunate.

24. When the matter came before us it was not clear as to what facts had been agreed to by counsel as the basis for sentencing. As we said recently in R. v. Kan Wah Cheung, Crim. App. 85/90 (judgment of 9th August 1990), defence counsel must not agree to any fact in the statement which is disputed. The judge is entitled to treat that statement as exactly what it purports to be - an agreed set of facts. Here the statement was said to be agreed and yet it contained two statements which, if correct, seem contrary to his plea of not guilty and acquittal on the wounding charge, and to what was said by counsel in mitigation on his behalf.

25. When the matter first came before Deputy Judge Gall on the 24th October 1989 a summary of facts was tendered in relation to all accused. D3 had pleaded guilty to the robbery charge but not guilty to the wounding and, when asked if the facts as read out were admitted, his counsel said "as far as the facts that are relevant to the plea of guilty which has been entered, they are admitted". That statement said that D3 carried a beef knife when the robbers entered the premises and that he used it to chop one of the victims, Ng Fong-kei. In the light of defence counsel's statement those parts of the summary of facts could not have been agreed but that should have been specifically so stated.

26. When the matter called before Deputy Judge Sharwood on the 25th April 1990, the applicant was represented by different counsel. The Crown offered no evidence against him on the wounding charge and he was acquitted. The applicant was remanded for sentence on the robbery charge and Crown counsel said that "in view of the position the Crown has adopted in respect of the wounding" the summary of facts as filed would have to be amended.

27. When the matter again came before Deputy Judge Sharwood on the 15th May 1990 the statement of facts was again tendered but with only relatively minor amendments. It said that:

"         At 2.15 p. m. on 20.1.1989, KWOK Chi-wai (D1), KWOK Kwai-chuen (D2) and CHAN Kwai-to (D3) entered the offices of the Kai Kai Motors Trading Company, intending to rob the NG brothers of their jewellery. D1 and D3 brought some lengths of metal wire and some beef knives from D3's residence, and met up with D2 and a fourth man, who was to act as lookout. The fourth man is still at large.

 

        At least two of the three defendants carried beef knives.

 

        D2 confronted V3 in the office. He held a beef knife to the neck of V3 and announced the robbery. A struggle ensued in which V3 was cut in the palm of his right hand and his Rolex watch stolen.

 

        D1 and D3 confronted V2 in another office, D1 carried a beef knife. D1 and D3 struggled with V2.

 

       V2 received a chop on his right shoulder, the palm of his right hand and on his left hand. He also received chop wounds in his left leg, chest and his right leg. V2 threw a chair at his assailants who fled.

 

        V1, hearing the shouts and sounds of struggle, came downstairs and with V3 chased the robbers. In the chase D1 turned and slashed at V1, cutting his right forearm. Some construction workers joined in and caught D1. D2 and D3 were able to escape, When the police took custody of D1, he had a chop wound to his right shoulder.

 

        V3 returned to the shop, recovered his watch from the floor, and accompanied V2 to the hospital.

 

INJURIES

 

       V3 was treated for a laceration to his right palm caused by the knife held by D2. He was released from hospital the same day.

 

         V1 was treated for a deep slash, 10cm long, to his right forearm caused by D1. This wound was closed with 13 sutures. He was discharged from hospital 27.1.1989.

 

        V2 was treated for multiple chop wounds sustained from D1 and D3. These include :- "

The statement then sets out the injuries received by V2 - NG Fong-kei.

28. The only deletion from the first agreed statement of facts was the sentence that D3 actually joined in with D1 and chopped NG Fong-kei.

29. This was a totally confused statement so far as D3 was concerned, particularly when it said that "at least two of the defendants carried knives". In the previous paragraph it was apparently agreed that Dl and D3 had brought knives and later that D2 had confronted V2 with a knife. The agreed statement of facts also refers to "V2 (NG Fong-kei) was treated for multiple chop wounds sustained from Dl and D3".

30. The trial judge endeavoured to sort out this very unsatisfactory situation. He asked defence counsel if the plea on the robbery charge was on the basis "that D1 had a beef knife in confronting V2 but D3 did not. Although he joined in the struggle he was not the one who delivered the chop blows". He received the unhelpful reply "Yes. My Lord, the brief facts are agreed." Counsel went on to say "I am instructed to say that at the time before they went into the premises to commit the robbery, I think there was a tacit agreement between D3 and the others that no violence would be used out the knives would be used merely to threaten the victims".

31. It would seem that the position was then that D3 had agreed that he went with D1 and D2, each of whom had a beef Knife. D3 did not have a knife and thought that the others would use theirs only to threaten the victims. The part of the agreed statement where it was said that NG Fong-kei's injuries were caused by D1 and D3 seems to have been ignored. In this Court, Mr. Reading said it had been accepted by the Crown that D3 was not armed.

32. That this was a confused and unsatisfactory situation seems to be reflected when the trial judge said in sentencing D3 he could distinguish his case from D1's "on the grounds that you are less involved in the slashing of - or that you are not involved in the slashing of victims". Earlier he had said "It is possible that things developed beyond your contemplation and expectation, nevertheless you went along with a gang knowing what was going to happen and very much part of the joint enterprise". If by the words "knowing what was going to happen" he meant the wounding as well as the robbery that of course was not agreed and did not reflect D3's acquittal of the wounding. I think we must assume the judge did not intend that meaning.

33. It is difficult indeed to see why the Crown elected not to proceed on the wounding charge against D3. If he went with the others to rob and knew they carried knives to threaten the victims he is taken to also realise the weapons might be used to achieve the object of the robbery or, in a moment of panic, to escape. Equally strange, in view of the acquittal on the wounding charge, was defence counsel's agreement to the contents of statement of facts as tendered. This, it seems to me, can only be logically explained on the basis that the Crown felt it was unable to prove that D3 had the necessary intent to cause grievous bodily harm.

34. D1 was caught and detained at the scene. His plea of guilty was in the face of totally overwhelming evidence and he was the one who actually slashed Mr. Ng so as to cause these terrible injuries. He received sentences of ten years for the robbery and five for the wounding, to be concurrent. He was aged 22 and had a conviction for robbery in 1986. D3 received eight years for the robbery, a discount being given for his plea, which was not in the face of strong evidence, and his age of 18. In effect therefore he received little discount, as against D1, for his acquittal on the wounding charge.

35. The Crown charged all defendants with both robbery and wounding causing grievous bodily harm. It was perfectly correct to do so. On the basis of the agreed facts as to D3's role in the affair his knowledge that the others were armed with vicious weapons and his joining in the assault on Ng Fong-kei the only logical way the trial judge could have approached those facts, while bearing in mind his acquittal on the charge of wounding with intent to cause grievous bodily harm, was that he did not have that intent but did realise that knives were to be used, at any rate to threaten the victims. Dl was fortunate indeed to receive a total sentence of only ten years and at first I was concerned that D3 may have been sentenced for an offence on which, rightly or wrongly, he had been acquitted. I am however now satisfied that, although there was some confusion as to the basis for the sentence, the trial judge was not in error in taking into account D3's agreed role in this affair. That being so I agree with Fuad VP that the sentence is perfectly proper and that the application for leave should be refused.