ATTORNEY GENERAL v. KWOK YUN HUNG

IN THE COURT OF APPEAL

Application for Review

1995, No.6

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This is an application for review of sentence brought by the Attorney General. The respondent to the application pleaded guilty to the offence of conspiracy to rob before Mr. Justice Saied on 28th February 1995. He was sentenced to imprisonment for six years. The application for review is made upon the ground that the sentence was manifestly inadequate and wrong in principle.

2. The trial judge when sentencing said:

"Taking into account that this being a Common Law robbery, the maximum sentence for which is seven years, I take six years as the starting point."

The trial judge was wrong in that statement. In consequence of s.101(I)(2) of the Criminal Procedure Ordinance, the maximum sentence is now life imprisonment. It is submitted that the trial judge having based his assessment on a maximum and having taken a wrong starting point was inevitably in error when he sentenced the applicant to imprisonment for five years. This submission is in our view unarguable and indeed Mr. Oderberg, who appears for the respondent today, does not suggest otherwise.

3. The facts as admitted by the respondent was as follows. On 13th May 1994 the respondent under caution admitted:

(a) that in January 1992 he had been to the Tai Po area with a person called Ho Fat, Luk Chi-kong and two unknown men on two occasions;

(b) that the reason for going to the area was to commit a robbery;

(c) that the robbery was to obtain electronic parts;

(d) that Ho Fat told the respondent that he would share about 20% of the things obtained from the robbery as his benefit;

(e) that on the second occasion that the five persons went to Tai Po, the respondent and the two unknown men alighted from a car whilst Ho Fat and Luk Chi-kong drove off saying they were going to view the surroundings of Tai Po Industrial Estate. The respondent went with the two unknown men to the Tai Po Market intending to steal a lorry which he was to drive for the robbery;

(f) outside a video shop in the old market the two unknown men stopped to watch television. The respondent was a certain distance away from them. He saw the two unknown men intercepted by plainclothes police. He saw them run away. He saw one of them draw pistol following which he heard a bang. He then made his way to a cafe and paged Luk;

(g) about 15 minutes later Luk and Ho picked up the respondent in a vehicle outside the cafe;

(h) previously on that day on the way to Tai Po in the car Ho told the respondent that the two unknown men had pistols with them.

4. We deal immediately with the significance of that final admitted fact. In our view it does not matter significantly that an offender at a late stage in a conspiracy learns that some of the other conspirators intend to use pistols. What is significant is that he continues thereafter to participate in the conspiracy. It can, however, in the present case, be submitted in the respondent's favour that the way in which he was informed that the two men were carrying guns indicates that he was not central to the planning of the conspiracy and was not privy to the full details of what was to be done. He was, as Mr. Oderberg has suggested, one of the lesser conspirators. The trial judge rightly took a serious view of the offence stating that seven years was a low maximum for such an offence. Somewhat ironically he suggested that it should be amended upwards.

5. The authorities have been cited to us by Mr. Cross, Q.C. indicate a very much higher level of sentence for offences of this kind. We are satisfied that an offence of conspiracy which involves the use of firearms, careful planning and the participation of a number of persons in circumstance such as we have here can properly attract a starting point for sentencing of 18 years. Taking this starting point we turn to the circumstances of this respondent. He is entitled to a substantial discount for his plea. We bear in mind that he is entitled to be dealt with on the basis that he was not privy to the central planning for the conspiracy and that, as was indicated in The Attorney General v. Wong Kwok-wai(1991) 2 HKLR 384, upon an Application for Review a discount can properly be given where the sentence imposed is greatly in excess of the original sentence. Having borne all of these matters in mind, we are satisfied that the appropriate sentence would be one of ten years.

6. We finally echo the words of Penlington J. in R. v. Wu Man Hon & Ors. [1993] 2 HKC where he indicated that, in cases where a substantial term of imprisonment must, inevitably, be imposed probation reports should not, unless there be some quite exceptional circumstances, be called for as they serve no real purpose and impose an unnecessary burden on the probation service.

7. The application of the Attorney General for review is granted. The sentence of five years is varied to one of ten years.