R. v. WU NGAN HANG

IN THE COURT OF APPEAL

1996, No. 120
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. The applicant is 36 years of age. He is an illegal immigrant originating from Wunam. He committed an armed robbery on Emperor Gold & Jewellery Shop on 15 February 1993. For that offence he was arrested on 22 February 1993 and later having pleaded guilty sentenced to 16 years imprisonment on 11 August 1994,. In the meantime, enquiries into the present offence, a similar armed robbery on King Fook Gold & Jewellery, committed on 24 March 1992 - one year earlier - was proceeding but not at any great pace. On 11 June 1993 a palm-print left on the counter of King Fook during the 1992 offence was found to match the applicant's palm-print. Administrative errors caused delay and he did not appear before Burrell J for the 1992 offence until 14 February 1996. He pleaded guilty. Two other offences on the indictment were ordered to lie on the file.

2. The judge passed a sentence of 17 years imprisonment concurrent with the sentence then being served. We turn in a moment to the effect of that sentence.

The facts

3. In the afternoon of 24 March 1992 two masked robbers, one of whom was the applicant and one who was carrying a gun, entered the King Fook Jewellery Shop in Causeway Bay and declared robbery. A third man, also armed with a gun, was outside keeping lookout. The two inside ransacked the shop and took jewellery worth in total $4.4m. When a lady customer tried to leave the shop, she was taken hostage by the man outside. A police officer on duty in the vicinity had received reports and after calling for reinforcement, he confronted the men leaving but they were able to escape with the hostage in a hijacked taxi.

4. They forced the driver to drive towards North Point. A police ambush near Victoria Park tried to stop them. A shot was fired from the get-away taxi which struck a police car windscreen. Flying glass injured an officer, but the police gave chase. Eventually the robbers abandoned the taxi, leaving behind the jewellery, some chisels and stocking masks. The applicant escaped with the others to remain free until after he had committed the Emperor offence.

The appeal

5. He now applies for leave to appeal against his sentence of 17 years. He complains that this case was not brought on with reasonable speed so that the sentence of 17 years for the 1992 offence is consecutive to the earlier period in custody for the 1993 offence. He submits that the totality he is serving is manifestly excessive.

The sentence

6. In sentencing, the judge properly regarded this as a very serious offence indeed. It was robbery by a number of masked men using firearms of a jewellery shop at a time when it and the street outside were likely to be crowded. The property taken was of very high value. In order to make their escape, they took a hostage and hijacked a taxi. Finally, in order to assist their escape, they fired a gun at the police.

7. The judge took 25 years as the correct starting point for a robbery of this kind and then reduced the sentence to 17 years for his plea of guilty. That was undoubtedly a correct starting point for a single robbery of this kind and the discount given follows the normal practice of the courts.

8. The judge did not consider the exact effect of his sentence although he knew that little or no time that had already been spent in custody would count towards the sentence he passed. He did say, however, that "Today's sentence must result in some further time being spent in prison, but in view of the length of the sentences which are appropriate to these types of offence, I shall endeavour to keep it to a minimum".

9. The period which counts towards the sentence the judge passed began on 31 August 1995 - that was when this applicant first appeared before the Magistrate in respect of the 1992 offence. By that time he had been in custody for 2½ years, which will not count towards this sentence. That period will not count towards remission either. The total effect is as if, on 14 February 1996, a sentence of 20 years and 4 months had been passed. Such a sentence for both offences after pleas indicates too high a starting point.

10. We approach the matter in this way. Both offences ought to have been dealt with at the same time. If so, the sentences would have been passed on 17 August 1994 by the same judge. It would have been necessary for him to consider totality. Had he done so, the starting point he would have chosen would have been about 28 years. He would have reduced that sentence because of the applicant's pleas of guilty and the total would have come down to approximately 18 years.

11. In order to achieve the same result and do justice to the applicant, we give leave for this appeal. We treat the hearing as the appeal itself. We reduce the sentence of 17 years passed by the judge to one of 14 years which will achieve approximately the sentence which would have been passed had these offences all been dealt with together at the proper time in August 1994.