HKSAR v. WONG CHI KONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.776
(Criminal)

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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. The applicant pleaded guilty to one count of robbery and was sentenced by Deputy Judge Suffiad (as he then was) to imprisonment for seven years. The count alleged that on 1st April 1997, at the Hong Kong Holiday Travel Agency, Shop No.203, 2nd floor, Rise Commercial Building, Nos.5-11 Granville Circuit, Tsimshatsui, he robbed Yip Kai-kit of a briefcase containing US$145, $25,600 Taiwan currency, $12,400 Renminbi and HK$164,700.

2. The facts were that at about 4:10 on that day, the victim obtained money from a bank which he put in his briefcase before proceeding to the Hong Kong Travel Agency. When he arrived at the building, Rise Commercial Building in Granville Circuit, he mistakenly went to the first floor instead of the second floor where the office was situated. When at the first floor, he saw the applicant. He ignored him and went to walk up the stairs to the office of the agency. Upon arriving at the agency, he placed his briefcase on a desk and went to make a telephone call to Macau. Suddenly, the applicant rushed in. He stretched out his arm to grab the briefcase. He was seen to be holding a dark colour pistol-like object. The victim realized that it was robbery and shouted. The applicant took the briefcase and ran down the stairs. The victim and another man gave chase and in general raised a hue and cry, and the applicant was later apprehended by another travel agent employee. The black pistol-like object was found on the ground after the struggle, during which the applicant was subdued and the briefcase was recovered.

3. Initially, the defendant said that there was a second person Ah Man involved in the robbery and that he had taken instructions from Ah Man about it. However, this suggestion, in the outcome, was withdrawn by him and today he said that he only made it because he was pressured to do so by the police.

4. The ballistics officer of the police inspected the object and found that it was a toy pistol in the form of a block 9mm calibre self-loading pistol. It was designed to discharge 6mm calibre plastic balls using compressed air. It was in good working order but it was incapable of discharging missiles with a muzzle energy in excess of 2 joules. It was certified that it was no more than a toy imitation pistol. However it did externally resemble a real weapon.

5. When sentencing, the trial judge detailed the circumstances of the robbery and went on to say:

"On these facts one thing is clear, that you were caught red-handed and, although in your statement made to the police you had indicated that there was another person who was party to this robbery with you, I accept from what your counsel said that that person was a fictitious person made up by you and that this entire episode was carried out and planned by you alone. Also, from what you have told the police, you have bought this toy gun several days before the commission of this offence, no doubt with a view to using it for that purpose.

Mrs. Wacks (the counsel appeared below) has mitigated on your behalf saying that this offence came about because you had some $100,000 in setting up a business of fast food, but the fact that you had lost so much money in commercial dealings is no excuse for the commission of such an offence. Nor was that a mitigating factor.

The Court of Appeal has said that a distinction is to be drawn between cases where imitation firearms are used in the robbery of banks, jewellery shops or payroll vehicles from cases where imitation firearms are used, as in this present case, by a single opportunist robber robbing individual victims in public.

Giving effect to that distinction, I will use a starting point of ten years. That would have been the sentence you would have expected had you been convicted after trial. However, the one outstanding mitigating factor in your case is that you have pleaded guilty at the earliest opportunity in this case and for that reason and the other mitigating factors put forward on your behalf by your counsel I will reduce that to a term of seven years imprisonment."

6. The applicant in his written grounds had complained that the judge was prejudiced against him and suggested that the judge had once been a prosecutor and that this was the reason for the prejudice. He complains also that it was a heavy sentence. We reject any suggestion of bias on the part of the judge. We turn to see whether or not the suggestion that it was a heavy sentence has any merit. He pleads that he has a clear record and that he is very remorseful and that his girl friend in China had given birth to a child in July 1997. We have also heard from his mother, who has addressed the court today, and we note what she said but fear that, while she has our sympathy in this awful predicament, what she said cannot really influence the sentence that the court should properly pass.

7. The case to which the judge referred was The Queen v. Yu Tai-wing (1995) 2 HKCLR 119. In that case Macdougall, J.A. made plain that while robberies using imitation firearms were as serious if committed by a single robber in circumstances where the public generally were not involved, as they would be if the robbery was of a bank or jewellery shop or security van, that they were nonetheless serious offences, and they did place innocent by-standers at risk because of the chance that police or security guards who might be called to the scene could open fire believing the weapon being used as a real one. As the judge there said:

"The risk of innocent by-standers being killed or injured is always present in circumstances where decisions have to be made in split seconds."

8. He went on to say:

"In the present case, had the robbery been committed by using a knife or other dangerous weapon, not being a firearm, a sentence of five years' imprisonment would have been appropriate in accordance with the guidelines laid down in Mo Kwong-sang v. R. [1981 HKLR 610. However, the weapon that was used was an imitation firearm. Since the mere carrying of such a weapon with intent to commit an arrestable offence normally attracts a sentence of five years' imprisonment after trial, an overall starting point for sentence of ten years' imprisonment after trial was appropriate."

9. We are in entire agreement with those observations. The starting point taken by the judge was a proper one.

10. We turn then to the reduction, which he allowed of three years for the plea and other mitigating circumstances. This court has said, and we say again, that an applicant who pleads, as this applicant did, at the earliest possible opportunity, is entitled to a full one-third discount. He did not receive that discount. A full one-third discount would have produced a sentence of six years and eight months. To that extent, we are prepared then to interfere with the sentence.

11. The application will be allowed. The hearing of the application will be treated as the hearing of the appeal and the sentence of seven years will be varied to one of six years and eight months.