MA LAP SUN alias MA LEE SHING and Others v. R.

IN THE COURT OF APPEAL

1993, No. 678
(Criminal)

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J U D G M E N T

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Stuart-Moore, J. giving the judgment of the Court:

1. The first and third of these applicants apply for leave to appeal against sentences totalling 20 years' imprisonment imposed on both of them on 22 November 1993 by Duffy J following their pleas of guilty to counts 1,2,3 and 5 of the indictment. The 2nd applicant, who contested all of the five closely related charges on the indictment, applies for leave to appeal against conviction on all counts and the sentences amounting in total to 22 years' imprisonment.

2. The robbery in the first count was committed on 2 December 1992 and occurred at the Prince Edward Road branch of the Chow Tai Fook Jewellery Company. Four staff members were the victims of the robbery in which gold ornaments, jewellery and watches were taken.

3. The second count of the indictment related to the possession under section 17(2) of the Firearms and Ammunition Ordinance Cap 238 of four self- loading pistols at the time of committing the robbery.

4. The third count charged shooting at Chan Ping-choi with intent to resist lawful apprehension contrary to section 17(b) of the Offences against the Person Ordinance Cap 212.

5. Count 4, on which only the 2nd applicant had to be sentenced, charged the Common Law offence of falsely imprisoning one Lam Chung-por who was driving his taxi with two passengers when the armed gang hijacked his vehicle. The prosecution, at the trial, did not proceed on this Count against the 1st and 3rd applicants when they pleaded guilty to all the other charges they faced.

6. The final count contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance related to the possession of firearms and ammunition without a licence, and the items set out in the particulars of the indictment amounted to three pistols containing between one and eight rounds of live ammunition, and three Type 1 Fragmentation Grenades. This weaponry was recovered by police immediately after the robbery and the chase that ensued.

7. Dealing first with the application for leave to appeal against conviction which has been advanced by the 2nd applicant in person, his grounds as set out in a letter he drafted are, firstly, that the trial judge was prejudiced against illegal immigrants and, secondly, that the trial judge misdirected the jury which, in turn, affected their verdict. Today he has coupled an additional allegation of bias against the prosecutor who was not the same counsel who appears today on behalf of the respondent. Although there have been references to other matters, they do not materially alter the original grounds because essentially it is the defence which the jury rejected at his trial that is still maintained by this applicant. We have had the opportunity of a thorough perusal of the summing-up by this experienced judge and find that the complaints which are made by this applicant against that judge are wholly groundless and without any merit whatever. The sole issue in the trial was whether or not the prosecution had proved beyond reasonable doubt that this applicant was not acting under duress at the time when he played his admitted part in this robbery. The summing-up was scrupulously fair and cannot be faulted. In addition, there is nothing in the papers that indicates any bias by the prosecutor. Accordingly we refuse the application for leave to appeal against conviction.

8. Turning now to the facts of this case on which the sentences were imposed. It was at about 2 p.m. when a heavily armed gang of five robbers burst into the jewellery shop in question. The 25 customers and the staff were terrified at what they saw and, not surprisingly, readily complied with the order that they should squat down on the floor. No less than four of the gang were carrying guns. In the event, during the next four minutes over $2m worth of property was stolen, almost all of which was subsequently recovered.

9. As the robbers fled the scene they immediately encountered the police. Gun fire was exchanged in the street and as the robbers made their way towards the subway leading into Olympic Garden, one of the robbers who had a gun was shot dead. Further shots were fired as the remaining four robbers tried to make their escape. At this stage there was an unsuccessful attempt by the gang to hijack a van, quickly followed by a successful hijacking of a taxi and its driver at gun point. Two passengers, both women, who were sitting on the back seat were pushed to the floor, and the exchange of gun fire continued. As the taxi travelled along the road, three grenades were thrown from it, none of which exploded as they had not been activated. The taxi driver managed to jump out after a short distance, leaving his vehicle and the occupants to fall into a large hole created by road works. Even at that stage there was another exchange of gun fire and the robbers only surrendered when police resorted to the use of smoke grenades. At about this time it was discovered that the robber who had been sitting in the front of the taxi had been shot dead.

10. These three applicants were all illegal immigrants from Mainland China. After hearing speeches in mitigation, the learned judge passed the following sentences. Treating the first and the third applicants both of whom had pleaded guilty in exactly the same way, he imposed prison sentences of 13 years, 12 years, 15 years and 10 years on counts 1,2,3 and 5 respectively. Having regard to the totality involved it was ordered that three of the 12 years on count 2 should run consecutively to count 1 and four of the 15 years on count 3 should run consecutively to counts 1 and 2. In this way the total sentence of 20 years was achieved in each case.

11. The prison sentences imposed upon the 2nd applicant were 15 years, 12 years, 15 years, 4 years and 12 years respectively on counts 1 to 5. Consecutive terms of the same kind as the first and third applicants received were imposed upon the 2nd applicant so that his combined sentence was one of 22 years. The judge ordered that the sentences on counts 4 and 5 should run concurrently.

12. Before we pass from the indictment itself we would wish to remind prosecutors of what was said in Criminal Appeal No. 475 of 1992 in The Queen v. AU Yeung Siu-wai and Cheung Cho-san. In that case also, the robbery was made more serious by the carrying of firearms and in the course of his judgment in that case, Macdougall, J.A. said at page 5:

"Before we take leave of this case we think that we should observe that it is difficult to understand why the prosecution saw fit to add to the robbery counts, counts of possession of a firearm at the time of committing a robbery. Plainly the evidence was that the robbers carried out the robbery with full knowledge that one of their companions was holding a firearm. In such circumstances the addition of a possession count to the related robbery count merely serves to overload the indictment and to create confusion. This observation of course does not apply to the inclusion in an indictment containing a robbery count, against an accused of a count of possession of a firearm simpliciter where the accused's possession of it is alleged to have occurred at some time other than during the commission of the robbery or other offence."

13. Relating those words to the present case it seems to us that counts 2 and 5 were aggravating features of this robbery and that to have charges on the indictment dealing with those factors was to overload the indictment that the jury had to try. The firearms were part and parcel of the robbery and, on the facts of this case, once a robbery had been proved against any of those alleged to have been party to it, it was inconceivable that anything other than a guilty verdict could be returned on the firearms charges.

14. Count 3 on the other hand was a matter of such additional gravity that it was very properly included for the jury's consideration. The same applies to count 4 where the taxi driver and his two passengers were put very much at risk in the gun battle that raged between robbers and police.

15. The principal matters urged in mitigation before Duffy J passed sentence on the first and third applicants were their pleas of guilty, the false promise that each of them had been given of work in Hong Kong if they came into the territory illegally, that neither of them had fired shots at the police unlike the two robbers who were killed in the attempted escape, and their previous good character. In relation to the third applicant it was further urged that the six years' difference in his age was something that should be taken into account. The learned judge took as his starting point 23 years' imprisonment. He took into account what had been said on behalf of these applicants and said that he could find no reason for making a distinction between them.

16. Mr Sceats, on their behalf today, submits that insufficient credit was given for those pleas of guilty in the light of current sentencing practice. We have in mind the cases that he drew to our attention taken from his own argument and also from the respondent's submissions. In particular we were reminded of the terms of The Queen v. Wong King Sun & others Cr.App. No.217/89 and Pang Chun Wai Cr.App. No. 7/1992. Just as we have Mr Sceats' submissions in mind, we recall also the learned judge's remarks in passing sentence. He said:

"You have come here illegally from Mainland China and committed an outrage against public order. You carried out an armed robbery in the Chow Tai Fook Goldsmith Shop terrifying staff and customers into submission, and then you carried on a running gun battle with the police in which 56 shots were fired and 3 hand grenades were thrown in the busy streets of Kowloon. You were all willing participants in this criminal enterprise.

Happily, the hand grenades did not explode, but it is only by the grace of God that no Hong Kong policeman or citizen was shot or injured. Your two dead colleagues knew the risks they were running with their own lives, not to mention the lives of others.

Running gun battles between villains and lawmen are the stuff of wild west legend. They are not tolerated in civilized communities. The extent of your callous and reckless disregard for life, including your use of hand grenades, are clearly exacerbating features of your offences."

Later on in his sentencing remarks, Duffy J made it plain that he had considered passing life sentences but as this was not in his judgment the worst case of its kind and, as the criteria in R. v. O'Dwyer. (1988)86 C.A.R.313 had not in his view been satisfied, he had decided against this course.

17. In the submissions that Mr Zervos makes to us, he says that this was a case that fell either into the category of the worst kind or, if it did not, it was very near to it. We are grateful both to him and Mr Sceats for the benefit of their helpful research. Amongst the cases which Mr Zervos cited was the unreported case of A.G. v. Kam Chung Pang Cr.App. No. 504/91 in which, at p.4 of the judgment, Macdougall, J.A. said:

"The applicant sought to compare his sentences with those passed on another offender in a different case. We take the opportunity of again stressing that, in determining whether we should interfere with a sentence, this court is solely concerned with whether it was excessive in all the circumstances of that case, not with whether it is heavier than one which was imposed on another offender in an entirely different case.

On a consideration of the facts of this case, we do not think that it can justifiably be said that 20 years was too high a starting point for sentence. Indeed, we feel constrained to say that the starting point was too low; it should have been 25 years."

18. A similar starting point of 25 years was indicated for cases of robbery followed by a gun battle with police in the case of The Queen v. Yu Lok-Ting Cr.App. No. 260/92.

19. In the present matter before us the learned trial judge had tried to keep in mind the totality of the sentences imposed and this he clearly did. In our judgment, his starting point of 23 years veered on the low side. Innocent lives had been put at risk. The robbers' guns had fired not less than 13 rounds and the police had of necessity returned fire with, to quote from the agreed facts, a maximum of 53 shots. Those who participate jointly in a running gun battle with the police can expect no leniency whatsoever from the courts. The police and the public are entitled to be, and expect to be, protected. This kind of case is an affront to society showing as it does a total disregard for the safety of others.

20. There is, in our judgment, nothing manifestly excessive about sentences of 20 years' imprisonment following pleas of guilty to crimes in this league. The sentences imposed on the 1st and 3rd applicants were not a day too long.

21. Lastly we deal with the 2nd applicant who, despite having deprived himself of the most important mitigation available to the others by contesting the charges in front of a jury, received only two years more than them. It was accepted that he had not carried a gun or a grenade at any stage but, as the judge rightly observed, this was no real ground for distinguishing between him and his accomplices once the jury had rejected his defence of duress and found him to be a willing participant in this armed gang.

22. What has concerned us is whether or not we should exercise our powers under s.831(3)(b) of the Criminal Procedure Ordinance, Cap. 221, by increasing this applicant's sentence. We have decided, on balance, that justice can be done without doing so on this occasion. This is an unrepresented applicant and, had he had the benefit of legal advice, perhaps wiser counsel would have prevailed.

23. In our judgment, he could and should after a contested trial, have been sentenced to a lengthier term of imprisonment which would, in turn, have reflected the proper distinction between himself and those who pleaded guilty. Our decision not to increase the 2nd applicant's sentence should not be taken as any sort of indication that, if similar situations occur in the future, this Court will not increase what is already a very substantial sentence where it inadequately reflects the gravity of the crime.

24. Accordingly, these applications for leave to appeal against sentence are refused.