HKSAR v. YIP KAI FOON

CACC138/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 138 OF 1997

(ON APPEAL FROM HCCC 270 OF 1996)

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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 leave to appeal against the sentences imposed in High Court Cases No.270 and 271 of 1996, which became Criminal Appeal Nos. 138 & 139 of 1997. The application can only be properly understood if we set out the background which gave rise to the convictions.

2. The applicant was convicted in October 1985 on two counts of handling stolen jewellery and two of possession of firearms. He received a total of 18 years' imprisonment on those counts. This total was reduced to an overall sentence of 16 years on appeal. On 24th August 1989, he escaped from Queen Mary Hospital where he had been sent for medical attention while serving that sentence at Stanley Prison. When making his escape, he commandeered a van and kidnapped the van driver and his son. This gave rise to the counts in the indictment in HCCC 271 of 1996 (HCCC 271/96), being one of escaping from legal custody and two of kidnapping contrary to common law.

3. From August 1989 until 13th May 1996, the applicant was at large despite strenuous endeavours to recapture him.

4. In the early hours of 13th May 1996, he was among a group of men who were spotted by patrolling police officers. The applicant exchanged shots with the police and all members of the group, except him, escaped. He suffered a gunshot wound which left him paralysed from the waist down. This incident gave rise to the counts in HCCC No.270 of 1996 (HCCC 270/96) which were possession of firearms, use of firearms with intent to resist arrest, possession of explosives with intent to endanger life or property and an alternative count of possession of explosives simpliciter.

HCCC No. 271/96

5. The applicant pleaded guilty to the counts under HCCC No.271/96 and was, on 10th March 1997, sentenced as follows:

(1) Escaping from legal custody - two years (the statutory maximum for this offence is two years).

(2) Kidnapping - three years.

(3) Kidnapping - three years.

The judge ordered that counts 2 and 3 be served concurrently but consecutive to the sentence on count 1, making a total five years. He also ordered that that sentence be consecutive to the overall sentence of 25 years, to which we will next turn, imposed on the counts in HCCC 270/96 and to the balance of the pre-existing sentence to which we have referred of 11 years and 3 months. This made a total 41 years and 3 months.

HCCC No.270/96

6. In HCCC No.270/96, the applicant pleaded not guilty to the three charges but was found guilty after trial and sentenced to 13 years (statutory maximum 14 years) on the possession of firearms charge, to 20 years (statutory maximum life imprisonment) on the use of firearms charge, and to 18 years (statutory maximum 20 years) on the charge of possession of explosives with intent to endanger life or property. Counts 1 and 3 were ordered to be concurrent but 5 years of those concurrent sentences was ordered to run consecutively to count 2, making a total of 25 years.

7. When sentencing, the judge first told the applicant that any question of clemency on the ground of health in a case as serious as this was a matter for the Executive and not for the courts. He then said:

"Dealing first with indictment 270 of 1996 these offences were committed while you were a prison escapee. You had only served 4 years of the sentence imposed in 1985 when you escaped from the custody of Correctional Services Department officers, who were in Queen Mary Hospital to look after you.

You came back to Hong Kong during the early hours of 13 May 1996 under cover of darkness. You have brought a gang of about six others with you. You were armed with the kind of weapons which leave no doubt that you had arrived with the intention of committing a crime of the utmost seriousness. If any further proof were needed of this, you were carrying a very large quantity of explosives in addition to guns. The weapons and the bomb equipment indicate that the public would have been in great danger had you not been caught. You have little or no respect for human life. It comes as no surprise that you have never disclosed the purpose of your mission. You were a professional criminal. Your equipment indicates louder than any words that no one would have been permitted to stand in your way if you could prevent it.

So far as count 2 is concerned, only the fact that your gun jammed stopped you from firing further rounds at the police. I am satisfied that you changed the magazine in your pistol in order to attempt to get rid of the obstruction. Fortunately your gun remained jammed. Those actions illustrate your determination to risk the lives of others in order to secure your own safety. By making use of your loaded gun to resist arrest, you risk the lives of police officers. In such circumstances the courts have a duty to pass a sentence which not only punishes the offender but will deter others from similar conduct in the future. It is only in this way that the courts can provide adequate protection to the police.

I am satisfied that you no longer pose any danger to the public. Bearing in mind what was said in the Wilkinson case and others to which Mr. Plowman this morning has referred me, I am persuaded that it would not be appropriate to pass a life sentence.

On count 2, you will go to prison for 20 years. Turning to count 1 of the indictment, it is difficult to imagine a more dreadful weapon than a machine pistol in the hands of a dedicated criminal. The offence could hardly be more serious. In any event you have a firearms conviction and know how seriously these matters are regarded in Hong Kong. The sentence is one of 13 years' imprisonment.

Count 3 again demonstrates how you were prepared to endanger other people to achieve your own purpose, whatever that might have been. Perhaps you were driven by greed and never once pause to think how others might have suffered if you had detonated a bomb of this magnitude in our crowded city. Almost inevitably ordinary citizens would have been killed or maimed. The sentence on count 3 is that you will go to prison for 18 years.

Having regard to the totality of the sentences imposed on you, the sentences on counts 1 and 3 will be concurrent with each other. They are, however, far too serious to be made wholly concurrent with the 20 years' sentence on count 2. I shall order that 5 years be served consecutively making 25 years in all on that indictment.

I turn now to the other indictment No. 271, the escape and subsequent kidnapping of Ho To and his son are serious offences in themselves. They are quite separate and distinct offences from those in the other indictment. You have pleaded guilty and this at least provides some mitigation to the indictment.

Sentence on count 1 will be one of 2 years' imprisonment which is for the escape and sentences on counts 2 and 3, both of kidnapping will be sentence of 3 years' imprisonment. Bearing in mind the totality of your sentence, sentences will be concurrent on counts 2 and 3. They will be consecutive to count 1 making 5 years in all and will be consecutive to the 25 years on the other indictment, making 30 years in all.

I shall direct under the terms of the Criminal Procedure Ordinance, section 68, that the sentence of 30 years imposed today shall commence at the expiration of the prison sentence you are concurrently serving."

The Submission - HCCC 271/96 - Escape from Lawful Custody

8. Mr. Plowman, S.C., with him Mr. Kwok, who appears for the applicant, first submits that the sentence imposed on escape from lawful custody (count 1 in HCCC 271/96) was excessive and further that the judge was in error when he ordered that the totality of sentences on counts 2 and 3 under that indictment (the two kidnapping counts) be served consecutively to the sentence of two years' imprisonment imposed on count 1. He submits that the sentence of two years, which was the maximum under section 17 of the Prisons Ordinance, Cap.234, should not have been imposed as it was wrong in principle to sentence an applicant to a maximum term unless it was the worst type of case and that this was not such a case. He submits further that it was wrong in principle to make no allowance for the applicant's plea of guilty. This was a serious case of escape from legal custody pursued with reckless determination but it did not involve outside assistance and appears to have been ex improviso. Given that the maximum penalty is two years, which, we must say, seems inordinately low, we consider that the maximum was not called for. We are satisfied that the proper sentence would be one of 18 months to which the customary one-third for plea should be applied producing a sentence of one year.

Consecutive Sentences - the Kidnapping Offences

9. It is next submitted that the judge, when he ordered that the concurrent kidnapping sentences be served consecutively to the sentence for escape from lawful custody, failed to take into account the fact that the offences were committed as part of one transaction. We see no merit in this submission. The transaction clearly merited a sentence of, as we have now adjusted it, four years.

10. Complaint is also made that the judge failed to bear totality in mind when he ordered that the sentence on the charges of escape from lawful custody and the kidnappings be served consecutively to the sentence of 25 years imposed for the offences dealt with under HCCC 270/96. We will turn to examine the question of totality after having dealt with the appeal against the individual sentences imposed.

HCCC 270/96 - The Individual Sentences

11. It is submitted the sentence of 20 years in respect of count 2, use of firearms with intent to resist arrest, was excessive and that a sentence in the region of 15 to 18 years would have been appropriate. The judge was dealing with a criminal gang led by an escaped convict who, in the dead of night, while transporting explosives for an unknown but undoubtedly gravely serious criminal purpose, engaged in a fire fight with pursuing police officers in an endeavour to escape arrest. The offence was, we are satisfied, in the most serious band of such offences and it warranted the sentence of 20 years imposed by the judge. A court when sentencing in such circumstances must bear in mind the terrible risk to which police officers and, indeed, members of the public are exposed to by such behaviour. Sentences must be imposed which, to use the words of Lord Denning, express "the emphatic denunciation by the community of" such crimes.

12. The sentences of 13 years on count 1 (possession of firearms) and 18 years on count 3 (possession of explosives) were ordered to be served concurrently but five years of those concurrent sentences were also ordered to run consecutively to the sentence on count 2. It is submitted that the sentence of 18 years imposed on count 3 and the order that five years be consecutive was excessive.

13. The explosives consisted of almost 2 kg. of TNT. We do not, as we have said, know to what use it was intended this explosive be put but we do know that it had the capacity to inflict terrible damage to life and property in a crowded city such as Hong Kong. We do not consider that the sentence of 18 years was in any way excessive, nor do we consider that it was excessive to order that five years be consecutive to the sentence of 20 years already imposed. A court would be failing in its duty to the public if it did not impose heavy deterrent sentences in circumstances such as this.

14. We are not impressed by the submission that these offences are not the worst of their kind such as occurs when a criminal gang has, in effect, declared war on society. Indeed, we are satisfied that the actions of the applicant and his gang came very close to this. We reject also the suggestion that the judge failed to take into account the fact that the offences were committed as part of one transaction. Taking that fully into account 25 years was a proper overall sentence on HCCC 270/96.

15. We now turn to the final overall sentence, which was a period of imprisonment of 30 years to commence at the expiration of the prison sentence which the applicant was then serving, making a total sentence of imprisonment of 41 years and 3 months. The sentence of 30 years, as we have indicated, should be reduced by 12 months to one of 29 years which, added to the previous balance of 11 years and 3 months of the previous sentence, makes a total of 40 years and 3 months.

Totality - HCCC 271/96 & HCCC 270/96

16. It is submitted that this totality is excessive as it imposes a period of imprisonment so crushing as to make it impossible for the applicant to have any realistic hope of salvaging some worthwhile substance of his life. We are asked to bear in mind that the applicant is a paraplegic who must endure grave hardship which is not the lot of an ordinary prisoner and that his life expectancy has been substantially reduced. We acknowledge that it is in our discretion to give weight to this ad miseracordiam plea, but are satisfied, as was the judge, that any such considerations should be left for the Executive.

17. We have given anxious thought to this matter and are satisfied when we look at the overall sentence of 40 years and 3 months that adjustment is called for in accordance with the totality principle. We are satisfied that the totality was excessive and that we can properly order that the sentence be varied to one of 36 years and 3 months. We do so by ordering that the overall sentence of 29 years imposed on HCCC 270 and 271 shall commence to run four years prior to the expiration of the sentence which the applicant was serving at the time when the later sentences were imposed.

18. The application succeeds. The hearing of the application is treated as the hearing of the appeal. The sentence of 2 years imposed on the charge of resisting arrest in HCCC 271/96 is varied to one of one year. The other sentences in HCCC 271 and 270/96 remain the same bringing the overall sentence on those offences to one of 29 years. That is ordered to commence to run four years prior to expiration of the sentences the applicant was serving at the time when the sentences the subject of this appeal were imposed.