R. v. WU MAN HON and Others

IN THE COURT OF APPEAL

1993, No. 111
(Criminal)

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J U D G M E N T

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Penlington J.A. :

1. These are applications for leave to appeal against sentences passed by Deputy Judge Daniell on charges of conspiracy to rob. These sentences were in respect of the first, second and fourth applicants (A1), (A2), (A4) were 11 years' imprisonment and in respect of the 3rd applicant (A3) 10 years. They were D1, D2, D3 and D4 respectively at the trial. In passing sentence the judge took a starting point of fourteen years's imprisonment which he discounted to take into account the applicants plea of guilty to the offences and he gave A3 a further discount because his criminal record did not contain any previous conviction for robbery.

2. There were several aspects of this matter which have caused us some concern. The first the contents of an agreed summary of facts which is dated November 1992, although the trial was not until February 3, 1993. This summary reads as follows:

"At about 6 p.m. on 5.8.1991 D1, D2, D3 and D4 met at Cafe De Coral, Nathan Road, Kowloon where they had agreed to commit a robbery together and share the proceeds of the stolen property.

At about 9:45 p.m. on 5.8.1991 D1, D2, D3 and D4 arrived near a building at No. 364-368 Reclamation Street, Kowloon to carry out the robbery. The police ambushed in the vicinity of the said building to arrest the defendants. The defendants tried to escape. D1 was arrested after a struggle. The bag which D1 had been holding was searched; and a black pistol loaded with six rounds of live ammunition and another single round of ammunition were found. A bath cap with three holes which was intended to be used as a hood to cover his face during the robbery was also found.

D2 was arrested after a chase and a struggle. The bag which he had thrown into the street was seized and searched where a melon knife and a beef knife were found. Inside his pocket, he was also found to be in possession of a black ladies stocking which was intended to be used to cover his face during the robbery.

D3 was arrested after a struggle. He was found to be in possession of a pair of white workman's gloves to be used during the robbery.

D4 was also arrested after a struggle. He was found to be in possession of three pairs of white workman's gloves and two coils of iron wires which were intended to be used to tie up the victims during the robbery.

When examined by Police Ballistics Officer, the said pistol was found to be a Chinese military model 54 semi-automatic 7.62 x 25 mm calibre pistol and the said ammunitions to be seven rounds of live ammunition in 7.62 x 25 mm calibre which were within the definitions of "firearm" and "ammunition" under the Firearms and Ammunition Ordinance, Cap. 238."

3. Although not set out in the summary of facts it was also apparently agreed between counsel that the police officers who ambushed the applicants knew even before the meeting in the Cafe de Coral that there was going to be such a meeting which had been organised by a man called Ah Po, who was not arrested and was in fact an informer. The plan, as apparently put to A1 by Ah Po was to rob a gambling den but even if the den existed there was never any possibility that the robbery could be carried out.

4. The summary of facts does not set out matters which were clearly relevant to sentence. In particular while it states that A1 had a pistol with six rounds of live ammunition in a bag he was carrying, there is nothing said as to whether or not the other applicants knew that he was carrying the gun. Each of the applicants was also indicted for two other offences, one for possession of arms and ammunition without a licence and another for possession of firearms with intent to commit an arrestable offence. They pleaded not guilty to these other offences but the Crown elected not to proceed on them, the counts to remain on the file.

5. Mr Mullick, who appeared here for all applicants, but not at the trial, submitted that as there was nothing in the agreed summary of facts concerning A2, A3 and A4 having any knowledge of the gun and the fact that the Crown elected not to proceed against them on the firearms charges must mean that they were entitled to be sentences on the basis most favourable to them i.e. they did not know that A1 had a pistol and ammunition. It was true that A2 in a cautioned statement which was in the committal papers admitted having a bullet which he said was given to him for safe keeping by A1 and A2 in one of his statements said that A1 told him at the meeting in the Cafe de Coral that he had a gun. D4 in his statement also said he saw a gun at the meeting before A1 put it into his bag. However the Crown had not sought to incorporate these admissions into the agreed summary of facts and if the other charges had gone to trial, the admissions may well not have been received in evidence. The applicants had entered their pleas on the basis of the facts as agreed and the court was not entitled to go outside them to take account of other evidence which was not agreed. Indeed it would seem that the judge did not do so.

6. A1 and A2 were represented at trial by the same Counsel who said in concluding his address in mitigation for them that the judge should "not to regard, despite what is in the probation report of the 2nd defendant, that the 1st defendant is in any way the ringleader in this case." He submitted that if there was to be any differential in sentence between the defendants it should only be on the basis of their criminal records. That was without doubt a submission he was entitled to make for A1 and was helpful to him as from the agreed summary of facts he was the one in possession of a gun. It was however not at all helpful for A2.

7. All the applicants have criminal records. A1 has two previous convictions for robbery in 1982 and 1986. He was sentenced to seven years' imprisonment for the latter event. D2 has two conviction for burglary, one for assault occasioning actual bodily harm and one for robbery and burglary in 1986 for which he was also sentenced to a total of seven years' imprisonment. A3 has two convictions for theft in 1982 and 1983 and was sentenced to the detention in Training Centre. A4 has numerous convictions for relatively minor offences but one for robbery in 1986 for which he was sentenced to three years' imprisonment.

8. The judge in passing sentence did not refer to any principle upon which he was basing the 14 years starting point. His reasons are brief and he did not refer to any authorities which had been cited to him. He said that some of the defendants said they did not know a gun was to be carried by A1, which he accepted, as we consider he was bound to, but that they did know they were about to participate in a violet crime. He accepted that because the police had been alerted before the meeting in the Cafe de Coral the robbery of the gambling din if indeed there was one could not have been carried out. He gave no discount however for the fact that the offence could not have taken place or for the element of entrapment which had been urged on him on behalf of all the applicants. While ruling that entrapment did not provide a defence to a charge Lord Diplock in R. v. Sang (1979) 69 Crim. App. R. 282, at 286 said :

"the fact that the counsellor or procurer is a policeman or police informer, although it may be relevant in mitigation of penalty for an offence, cannot affect the guilt of the principal offender."

9. Although he used the word "may" we consider that is authority that entrapment is a factor in mitigation of penalty. The starting point which the judge took of fourteen years' imprisonment in relation to A2, A3 and A4 cannot in our view be justified. In R. v. Leong Chi Wai and another 1992 HKCLR 207 Macdougall J.A. referred to A.G. v Man Yui-to A/R No. 6 of 1984 where Cons J.A. said that sentences of 12 to 14 years were appropriate for robberies of banks or jewellery shops. Mr Mullick however accepts that sentences for this type of offence have increased substantial since 1984. The judge said that the incidence of violent crime had increased since the early 1980s, which is correct. In R. v. Kan Chun Pang criminal appeal no. 504 of 1991 Macdougall J.A. again said in respect of a robbery in which firearms had been used and there was a gun battle in the street a starting point of twenty-five years' would have been appropriate. Another case which is of some assistance here is R. v. Eduardo Concha and Others Criminal Appeal 343 of 1985 where sentences were passed of seven years' imprisonment on each of a group of man who came to Hong Kong from the Philippines armed with revolvers with intent to carry out robberies. Those sentences were held by this court to be correct but again that case should be looked at in the light of the increase in sentences since 1985.

10. We do not consider that a starting point of fourteen years was too high for A1 as he admitted having a gun loaded with live ammunition which he intended to use to carry out the robbery. While this was not a robbery of a bank or jewellery shop in a crowded street with all the dangers to the public which are then present the use of a loaded pistol in the course of any robbery makes it a very serious offence indeed, even if the pistol is not actually fired. A1 was entitled to a discount for his plea of guilty and also because of the somewhat extraordinary circumstances of this case in that it could well be there was in fact no gambling den to rob and that the police had been informed, no doubt in return for a substantial reward, about the applicants intentions. We consider some additional discount should have been given due to those circumstances.

11. As far as A2, A3 and A4 were concerned, the starting point of fourteen years was too high. On the agreed statement of facts they had met together to go out and rob a gambling den. A2 was found to be carrying knives. A3 was in possession of workman's gloves to be used during the robbery and A4 was in possession of gloves and also some wire which was to be used to tie up the victims of the robbery. On the basis of the guideline case of Mo Kwong Sang 1981 HKLR 610 and the starting point suggested there of five years after trial for robbery using knives, there were aggravating features present here in that the victims were to be tied up, the robbery was to be carried out by a gang of four men and at night time. As against that the applicants pleaded of guilty to the offence and there was some degree of entrapment. We consider that a sentence of ten years' imprisonment would have been an appropriate starting point in respect of A2, A3 and A4 which in the case of A2 and A4 should have been discounted to one of seven years' imprisonment. D3 does not have any previous conviction for robbery and this should have been a further discount in his case to reflect that, making a sentence of six years' imprisonment. The applications for leave to appeal against sentence are granted. We treat this as the hearing of the appeal and the sentences are reduced accordingly.

12. We would only add that we are surprised to see that full probation background reports were obtained in respect of each of these applicants. They were all man of mature years and in respect of A1, A2 and A4 had previous convictions for robbery. Even in the case A3 he had a long criminal record. These could not have been any doubt whatever that each was to be sentenced to a substantial term of imprisonment. We would have thought that the normal police antecedent background statement would have been ample for the judge to take into account any particular personal circumstance of any of the applicants, not that such personal circumstances can have much, if any, relevance to sentences for this type of offence. The probation service is extremely busy and we feel that this was an unnecessary additional burden placed upon them.