R. v. KWAN CHIN PANG and Another

IN THE COURT OF APPEAL

1994, No. 34
(Criminal)

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J U D G M E N T

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

1. These are applications for leave to appeal against both conviction and sentence.

2. The 1st applicant (D.1), pleaded not guilty to charge of conspiracy to rob; guilty to possession of arms and ammunition without a licence (a gun and ammunition) and not guilty to possession of arms and ammunition in a public place.

3. The 2nd applicant (D.2), pleaded not guilty to the conspiracy to rob, not guilty to the possession of arms and ammunition without a licence but guilty to possession of an offensive weapon (a knife) in a public place.

4. Before us, Mr. Sceats appears for D.1 in respect of sentence only and Kwan appears in respect of conviction himself. Mr. McLanachan appears for D.2 in respect of both conviction and sentence.

5. The background facts of the matter were that information was given to the police that a robbery was to be committed at the Kam To Restaurant, 90 Ma Tau Chung Road, Kowloon, on the 5th February 1993. As a result when the two applicants came to the restaurant on that day at 10:35 a.m. they were overpowered by waiting police officers before any robbery could take place. D.1 was found to be in possession of an automatic pistol which was loaded and he also had seven rounds of ammunition in a waist-bag. D.2 had a beef knife. They were taken back to the Kowloon West police station and subsequently both applicants made statements in which they admitted that they had been approached by another man, "Ah Kwai", who had given them information that at the restaurant there were to be some wealthy merchants carrying large sums of money who could be robbed. D.1, in his statement also said that he had previously purchased the pistol and ammunition for $3,000 at Lau Fau Shan.

6. It was the Crown's case that each applicant was jointly in possession of both the pistol and the knife.

7. As far as the appeal against the conviction is concerned, it is argued by Mr. McLanachan for D.2 that the judge had erred in his summing-up in that while he had correctly directed the jury in respect of D.2's confession statement that it was for them to decide firstly whether the statement was made and secondly whether it was true, he had also said that they could find the statement was true even if, as had been alleged, there had been improper treatment of the applicant by the police. The same point has been taken on previous occasions and in R. v. Chow Kam Shing Cr. App. No. 180 of 1993, this question was considered. There it was said that although the judge should have specifically directed the jury that in considering whether or not a statement was true, they should take into account whether or not there had been oppressive conduct by the police, nevertheless, taking the summing-up as a whole, was there any real danger that the jury could possibly have considered that they should not take into account the alleged improper conduct in considering whether the statement was true? The court said, looking at the case realistically in the light of the whole of the evidence and the way in which the case was fought, that there was no such danger. The choice before the jury was a stark one, did the appellant make the admissions voluntarily and then sign them or did the police officer concoct the whole statement and coerce the appellant into signing it. In convicting the jury must have felt sure that the appellant's confession statement was free of impropriety.

8. We think that much the same considerations apply here. We are satisfied that although it would have been preferable for the judge to have directed the jury as this court indicated in Chow Kam-shing, the jury could have been in no doubt here that they should consider the question of the alleged police misconduct in deciding if they were satisfied that the statement was true.

9. D.1 also says that he gave instructions to his counsel as regards the timing of the statements on the basis that there was a substantial period between his being taken into custody and the time the statement was actually finished. Therefore, there was ample opportunity for the police to have behaved in a way that was alleged. Again, we are satisfied that the court was fully aware of the timing of the statements and we are in no doubt whatever that the time between D.1's arrest and his making the statement were taken into account both by the trial judge in deciding whether to admit the statement and by the jury in deciding what weight they could put on it. The applicant gave evidence himself and he tells us he did not refer to this factor.

10. Both applications for leave to appeal against conviction are refused.

Sentence

11. The sentences passed on each accused were seven years' imprisonment in respect of the conspiracy to rob, seven years for the possession of arms and ammunition and two years in respect of the possession of the knife. The first and second sentences to be consecutive, that is a total of fourteen years, that on the third count to be concurrent. It is argued here by Mr. Sceats for D.l, and Mr. McLanachan joins D.2 with those submissions, that these sentences made the totality of fourteen years too high for two men both twenty-two years of age at the time of the commission of the offences. D.2 also had a clear record whereas D.1 has a previous conviction for possession of an offensive weapon in 1989. We have given anxious consideration to this. There is a previous decision of this court in R. v. Wu Man-hon, Crim. App. 11 of 1993, where the facts were similar. There was a conspiracy to rob a gambling den and again a gun and ammunition was carried. One of the conspirators was a police informer and all the offenders were arrested before the robbery took place. There was even some doubt whether there was in fact a gambling den to rob. We said that we did not consider a starting point of fourteen years was too high for the applicant who was carrying a gun loaded with ammunition which he intended to use to carry out the robbery. This was to be a robbery of a restaurant. Inevitably it would be crowded, as indeed it seems that it was at the time of the applicant's arrest. The carrying of a gun must involve the presumption that, if required, it will be used otherwise it would not be loaded and, in this case, not only was it fully loaded, there was spare ammunition carried. The possible use of a gun in order to commit a robbery in a crowded restaurant must involve grave danger to innocent members of the public.

12. We do not consider that, in the circumstances here, a totality of fourteen years after plea is too high. That total has been achieved by a sentence of seven years for the conspiracy to rob, which in itself we think it is perfectly proper and a further seven years to reflect the aggravating factor of the taking along of a loaded pistol. Again we do not consider that that was wrong. However D.1 has a previous conviction, albeit when he must have been very young, for possession of an offensive weapon for which he went to detention centre. D.2 has no previous convictions. It was said by this court in Mo Kwong Sang that a clear record does not carry a great deal of weight in relation to these very serious offences, nevertheless, it is something which should have been considered by the judge and he does not seem to have done so. We also bear in mind the fact that D.1 was actually carrying the gun and while we would emphasise that where two conspirators are carrying out a robbery and one has a gun of which the other is aware, normally both are equally to blame and there should be no distinction made between them. Here, however, the statements made by the accused indicate that the D.1 had purchased the gun shortly before the robbery and for no other purpose than waiting for an opportunity to use it. Therefore we think that some distinction should have been made between the two accused.

13. D.1's application for leave to appeal against his sentences is refused. D.2's application for leave is granted. We treat this as the hearing of the appeal and order that the sentence on the second count shall be consecutive as to five years but concurrent as to two years in respect of the first count, giving a total overall of twelve years' imprisonment.