TSE SUI KEUNG and Others v. R.

IN THE COURT OF APPEAL

1993, No. 263
(Criminal)

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JUDGMENT OF THE COURT

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Kaplan J.

1. I deal firstly with the appeal of the 1st Defendant at trial, Mr. Tse Sui Keung.

2. On the 5th May 1993, this Applicant pleaded guilty to two counts. Firstly, conspiracy to commit a robbery. Secondly, possession of a firearm and ammunition without a licence.

3. He was sentenced on the 15th June 1993 by His Honour Deputy Judge Gould to 4 years on the conspiracy to rob count and 8 years on the firearms offence. The two sentences were ordered to run consecutively, making a total of 12 years. He seeks leave to appeal against sentence. He is 33 years old.

4. This Applicant was not one of the original conspirators but he was brought into the conspiracy and joined it apparently because the other conspirators required a firearm.

5. The robbery planned was that of a jewellery shop but it was not in fact carried out. Although the origin of the cancellation of the agreement to rob was somewhat unclear, the judge rightly gave this Applicant the benefit of having had something to do with the cancellation.

6. The judge took as a starting point 8 years but he gave a 50% reduction for the Applicant's plea of guilty and his role in the cancellation of the agreement to rob. No complaint is made as to the length of this sentence.

7. The firearm contained 8 live rounds of ammunition and was in good working order although it had not previously been used.

8. The judge took 8 1/2 years as a starting point bearing in mind the presence of the ammunition and he referred to Court of Appeal guidelines for possession of firearms without ammunition as 8 years on a plea. As I said, the Applicant had a clear record so the learned judge adjusted that slightly by reducing the 8 1/2 to 8 years imprisonment. No complaint is made as to the length of this sentence.

9. Having sentenced the Applicant to 4 years and 8 years on the two counts, the judge ordered the two sentences to run consecutively, making 12 years in total.

10. Complaint is now made that the two sentences should not have been ordered to run consecutively. It is submitted that the judge did not give sufficient weight to three factors. Firstly, the fact that the two counts were part of the same criminal enterprise. Secondly, there was no evidence to suggest that the weapon was intended to be used nor had it been used, and thirdly, the part played by this Applicant in the cancellation.

11. The learned judge had the benefit of a full and detailed plea in mitigation by Mr. Oderberg, then appearing for this Applicant, who said all that could be said on behalf of the Applicant. Great play was made of the non use of the weapon as was the Applicant's role in the cancellation of the agreement to rob. The judge clearly had these matters in mind and referred expressly to them in his sentence.

12. The crux of Mr. Dinan's submission before us today is that the judge was wrong in ordering the two terms to run wholly consecutively. He relies upon the fact that the Applicant gave up the robbery and did not go ahead with the agreement to rob and that the firearm itself was really connected with the robbery because that was the reason why he was brought into the agreement to rob. He said that it was unfair, in those circumstances, to make the two sentences run wholly consecutively.

13. In all the circumstances, having listened to Mr. Dinan and having had the benefit of a very fair submission from Mr. Coghlan, for the Crown, we take the view that when one looks at the totality principle the appropriate sentence in this case is one of 9 years and we can achieve that by making 5 years of the 8 years sentence on the firearm charge, to run consecutively with the 4 years on the conspiracy to rob. The remainder will be concurrent. That will bring the sentence to 9 years, which we think, is an appropriate sentence in all the circumstance of this case. We therefore give leave to appeal against sentence and allow the appeal in the manner which I have just indicated.

14. I now turn to consider the application of the 3rd Defendant at the trial. He was sentenced by the same judge to 10 years on the robbery count and 4 years on the conspiracy to rob count. They were ordered to run consecutively, making 14 years in all. Now the conspiracy to rob count was the same conspiracy to rob which I have just dealt with in relation to the 1st Defendant. In this particular case, we are dealing with an actual robbery of a jewellery shop in which some HK$52,000 was stolen and where a firearm was used. This particular Defendant did plead guilty to the offence and the judge gave a sentence of 10 years which we find to be a wholly appropriate sentence for a robbery at this nature.

15. The conspiracy to rob was a completely different matter. It well justified a sentence of 4 years and we can find no reason why those two sentences should not have been made to run consecutively. The total of 14 years imprisonment is upheld.

16. In relation to the 4th Defendant, he eventually pleaded guilty to the robbery count that I have just dealt with. He was sentenced to 12 years' imprisonment for the robbery. It has to be said that his plea of guilty came extremely late in the day, it being after the close of the Crown case and I believe after the defence case had commenced. His case is somewhat unusual because he had already been sentenced to substantial terms of imprisonment in relation to other matters.

17. In November 1990, he had been sentenced to 7 1/2 years for possession of a firearm and ammunition without a licence. In July of the following year, he was sentenced to 8 years on a charge of conspiracy to rob, 4 years of which was made consecutive to the sentence he was already serving, and he was also sentenced to another year for taking a van without authority. So at the time of sentencing in the case he was serving sentences totalling 12 1/2 years.

18. The learned judge sentenced for the matter before him and arrived at a sentence of 12 years but made it work out in such a way that he would serve an extra 5 years' imprisonment for the matters for which he was then being sentenced. So that meant he was serving a total of 12 1/2 years, the sentence of 12 years for these matters was partly concurrent so that he has to serve another 5 years for this particular robbery. In the circumstances of the nature of this robbery, the seriousness of it, including the use of a firearm, we cannot say the sentence of 12 years was other than an appropriate sentence.

19. In the circumstances, the applications for leave to appeal against sentence by the 3rd Defendant and the 4th Defendant are refused and in relation to the 1st Defendant, the application is granted in the manner which I have set out earlier.