R. v. YIP WAI-KWOK AND OTHERS

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicants appeared for trial before His Honour Judge Leonard (as he then was) sitting as a Deputy Judge of the High Court. There were seven named accused of which the first named was YIP Wai-kwok, the third named LAM Sze-ming, and the sixth named TAM Kwok-wai. It is with these only that we are now concerned.

3. Yip pleaded guilty to five counts of robbery and was eventually sentenced to a total period of 14 years imprisonment - the individual sentences being 14 years on count one, 7 years on count 4, 13 years on count 5, 13 years on count 7 and 11 years on count 9, all ordered to run concurrently. Other named accused having departed the scene for various reasons, Lam and Tam were tried jointly upon an amended indictment containing two counts, the first concerned a robbery which took place on the 19th October 1989 near the Kau Kee Restaurant in Granville Circuit, Kowloon and the second: one of possession of a firearm at the time of committing of that robbery. The single count of robbery is in the same terms as count 9 on the original indictment and to which Yip had pleaded guilty. Both Lam and Tam were found guilty by the jury of the joint robbery count. Both were found not guilty of the possession of a firearm count.

4. Yip now seeks leave to appeal against the sentences passed upon him Lam, having abandoned his application for leave to appeal against his conviction, seeks leave to appeal against his sentence of 14 years imprisonment.

5. Tam seeks leave to appeal against both his conviction and, if necessary, against sentence. He also received 14 years imprisonment. The matter not being ready for hearing, the applications of Tam were adjourned to a date to be fixed and we proceeded to hear the applications in respect of sentence by.both Yip and Lam.

6. Dealing first with the facts of the robbery offences to which Yip pleaded guilty. We would stress that there were a number of additional counts against Yip in the indictment relating to possession of firearms in the course of a number of those robberies but, upon his pleas, the Crown offer no evidence in respect of those firearm counts and he was formally acquitted.

7. Count 1:  Two men entered an apartment at 500 Shanghai Street, Mongkok at 1.45 a.m. on 8th September 1989. One of them pointed a revolver and the other pointed a knife at the first man to be robbed. That man was then gagged with toilet paper, had his mouth taped with adhesive tape and his hands and legs were bound with metal wire. The second victim was slapped on the back of his neck with a knife by one of the robbers at the same time as the other pointed a gun at his face. The gun was fired and he was struck by the bullet which caused a flesh wound. He was told to squat facing the wall and his hands were also tied with metal wire and behind his back. A cleaning lady, who was the third person robbed, together with another female, who was the fourth, were blindfolded and gagged with adhesive tapes and had their hands bound behind their backs with wire. The fifth person robbed was watching television in one of the rooms in the apartment. When he opened the door he was confronted by the man with the gun. The man with the knife rushed at him and, as he attempted to ward off a blow, was injured on his thumb and middle finger. He too was blindfolded and bound with wire.

8. The sixth person robbed was the owner of the premises. Two men entered his room and woke him up, one holding a knife pointed at him, the other taping his eyes and mouth and tying his hands behind his back with wire. A seventh and final victim was also blindfolded, gagged with adhesive tape and had his hands tied behind his back with wire.

9. Pieces of adhesive tape were found at the scene and on one of them were Yip's fingerprints. Upon arrest Yip was found in possession of an identity card stolen in the course of the robbery. The Crown offered no evidence against Yip on the firearm count.

10. Count 4:  Two businessmen, on 16th September 1989, went out for an evening meal and then on to a nightclub. At about 2 a.m., when one was driving the other home, their car pulled up in Woosung Street near Bowring Street so that they could have a talk. Yip, together with another man, approached them and they were told not to move. The car driver struggled and was cut near the armpit by a knife which Yip was carrying. Having told the driver to remove his watch and his wrist-chain Yip cut the side of his face with the knife. When the passenger refused to give up his wallet one of the two robbers punched him in the mouth.

11. Count 5:  This took place in the male lavatory in the basement of Tsimshatsui Centre in the early hours of 24th September 1989. The first victim went there at 2.45 a.m. and entered a cubicle. While in the cubicle a man put a hand over his eyes and held a beef knife against his neck demanding money. He was pushed by two men into another cubicle, made to squat down and had his hands tied behind his back with metal wire. He was then bleeding from the cut caused to his neck by the knife. He was also cut on his left hand. He had nothing on him which could be robbed. The second victim was a worker in the basement. Upon entering the lavatory he was cut on the left side of the face with a knife. A robber held a "pistol-like object" to his head and pushed him into a vacant cubicle. His hands were also tied behind his back, his mouth taped and his valuables were taken.

12. The third victim, another worker in the basement, upon entering the lavatory was threatened by three men, one of whom had a "pistol-like object". Two other men held knives against his neck. He was robbed and then pushed into a cubicle, his hands were tied with metal wire and he was gagged with adhesive tape. The fourth victim also had knives placed against his person and the "pistol-like object" pointed at him as he entered the lavatory. He received the same treatment. The final victim was in the course of using the lavatory when one of the robbers pointed a "pistol-like object" at him and two others held knives against his neck. He was robbed, tied up and gagged in the same manner as the others.

13. Yip, on arrest, admitted to the police that he had used a beef knife to commit these robberies with other men. He denied seeing any "pistol-like object" or knowing that one was to be carried. Given that the Crown offered no evidence against him in relation to the firearm charge we must accept that the Crown were happy with that denial.

14. Count 7:  This took place in the Chili Club Restaurant at Lockhart Road in Wanchai at about 11 p.m. on 17th October 1989. The staff and two remaining tables of customers were there. Two men appeared and were joined by a third who produced a Ghurka knife and loudly ordered everyone to squat down. Which they did. Other robbers, one of whom was a female, then entered the restaurant. Twelve persons had their mouths taped by adhesive tape and some of them were blindfolded with it. All had their arms tied behind their backs with metal wire. Money was taken from the cash register of the restaurant and cash, jewellery, credit cards, and identity cards were taken from each of the twelve persons. Each of them was forced to reveal their A.T.M. access code. They were threatened that if they gave incorrect numbers their fingers would be chopped off. The robbers then left. Yip, on arrest, admitted participation in the robbery and admitted that an imitation handgun seized by the police was one which was carried and displayed by one of the other robbers in the course of the robbery. Nevertheless the Crown offered no evidence on count 8: possession of a fire arm in the course of a robbery.

15. Count 9:  This took place at 1 a.m. on 19th October 1989 at the Kau Kee Restaurant - and, as it is the robbery, for which Lam was convicted, these facts concern him also.

16. Four people left the Kau Kee Restaurant and on the street were met with by a group of 5 or 6 men, armed with beef knives. One of those men had a "pistol-like object" with him. The four men were robbed and one of them, the brave Mr. Tsang Wah, chased after the robbers as they fled. He lost sight of them briefly but then saw two cars each containing men whom he recognized as members of the robbery gang. He pursued one of the cars in a taxi but eventually lost sight of it.

17. On arrest, Yip admitted participating in the robbery but denied using a handgun or seeing one used by any of the other robbers in the course of the robbery. A denial which the Crown accepted.

18. At Lam's trial the second count, that is the firearm count, was charged as "the carrying of a firearm". The trial judge very carefully directed the jury that if they thought the gun was an imitation one they would be entitled to acquit Lam. If they thought the gun was a firearm as defined in the Firearms and Ammunition Ordinance, a definition which he drew to their attention, then they would be entitled to convict him. It would appear from their verdict that either the jury were unsure as to whether "the pistol-like object" was a real or an imitation firearm, or whether they accepted that Lam was not aware of either its carriage or use. It is not for us to speculate as to why the jury acquitted on that count. It is for us to consider the effect of that acquittal on the sentence of 14 years imprisonment passed upon him.

19. For the offences to which Yip pleaded guilty - and having fully in mind that he was not convicted of any firearm offence - the totality of the 14 years imprisonment passed upon him could not be faulted.

20. Fortuitously for him - this because of the period which has elapsed between the convictions in 1990 and the coming on of these appellate hearings - Yip has given evidence in court against other robbers.

21. We say "fortuitously" because where it is indicated in the course of the sentencing process that a person is willing to give evidence on behalf of the Crown in subsequent trials such a promise is taken into consideration only under the general rubric of remorse. Promises do not have the same effect as reality.

22. Here it is accepted that Yip gave evidence upon which convictions in the subsequent trial were based. This of course was not a matter known to the sentencing judge. We think it right that Yip should be given credit for his actions. To effect this we think a total sentence of 11 years imprisonment would be proper. It is necessary therefore to alter the sentences on the individual counts to give effect to this. We would emphasise that reducing the sentences individually as we are about to do is not to be taken as any indication that the original sentence imposed for the particular offence was in any way wrong. We would set aside the sentences on count 1 of 14 years, count 5 of 13 years and count 7 of 13 years and substitute for each of them a sentences of 11 years imprisonment. All sentences remain concurrent thus giving the totality which we think proper.

23. As regards Lam: in imposing 14 years imprisonment the sentencing judge bore in mind the sentence he had already imposed on Yip and the age of Lam. With great respect, he does not appear to have given effect to the verdict to the jury which acquitted Lam of the carrying of a firearm. Further, Lam faced but a single charge whereas Yip faced 5 counts. An accused should be sentenced on the basis of the evidence most favourable to him. The judge, in imposing 14 years, clearly had in mind the use of the "pistol-like object" in the robbery. That cannot be right.

24. We therefore think it proper to fall back on the general guidelines contained in R. v. Mo Kwong Sang [1981] HKLR 610. The robbery took place immediately outside the restaurant in the open street and in the evening. The persons robbed were threatened with knives and the robbers were a gang. This was obviously a planned and premeditated robbery for cars were available for a get away. Though it may be that those who were robbed were not the intended victims - it was suggested that a particular person who was thought to be carrying a large sum of money was - nevertheless they were put in fear. Taking all those factors into consideration, in our judgement a sentence of nine years imprisonment is appropriate. The sentence of 14 years is set aside and a sentence of 9 years is substituted.

25. In both cases we would give leave, treat the hearing of the applications as the hearing of the appeals and allow the appeals in the manner indicated.