THE QUEEN v. LEUNG NAI-KWUN and Another

IN THE COURT OF APPEAL

1995, No.555
(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 applicants each pleaded guilty to a count of conspiracy to rob. The first applicant was sentenced to imprisonment for 10 years and the second to imprisonment for 9½.

2. The facts, which were admitted, were that the two applicants were apprehended, the police having laid ambush, in the Golden Harvest Restaurant in Nathan Road, Mongkok at about 1 a.m. on 20th December 1994. When the applicants were searched, the first was found to be carrying a pistol in his waistband with 18 bullets and plastic restraints in his jacket pocket. The second was found to be in possession of a knife. After arrest the second applicant said "The pistol and the knife were to be used to threaten people." It appears that both applicants had come from China a matter of two days before their arrest. It was admitted that the plastic straps were to be used to tie up the people.

3. The trial judge when sentencing said:

"Both of you pleaded guilty to one count of conspiracy to rob."

He then set out the facts as I have just detailed them and said:

"I have not the slightest doubt that your only intention to come to Hong Kong was to perpetrate robbery."

He went on:

"I find the only mitigating factor for the 1st accused in this case is his plea of guilty, whereas in addition the 2nd accused can rely on the fact that he had assisted the police."

The second applicant had given police a telephone number of persons who he said who were involved in smuggling unlawful entrants into Hong Kong but in the outcome this number did not lead to any arrests.

4. The judge went on

"For each of you, I would adopt a starting point of fifteen years imprisonment. I have not the slightest doubt that the robbery would be perpetrated in a busy street in the Mongkok area and that the pistol would have been used."

He then gave a discount of five years for the plea to the 1st applicant and of 5½ years for the plea and information given to the second applicant.

5. The applicants today urged us to take into account that nothing was pre-arranged. We assume they mean by that that no target had been chosen. They urged that they had co-operated with the police and that no one, in the outcome, had suffered any injury or loss.

6. The circumstances were serious ones. They were illegal immigrants. They were armed with an effective weapon and intended, as the trial judge was rightly satisfied, to prey upon the people of Hong Kong. The carrying of the knife, the gun and the restraints added a particular seriousness to the offence. It was not simply a conspiracy to rob but a conspiracy in which the conspirators had already armed themselves with effective means of carrying out their ends.

7. We are satisfied, however, that the starting point of 15 years was too high. In our view this conspiracy, given the existence of the gun, the knife and the restraints, should have attracted a starting point of 13 years. For the pleas of guilty, we are satisfied that an appropriate discount would have been four years. We follow the approach of the trial judge as regards the second applicant and on account of the information which he gave we increase the discount to 4½ years. This will lead to sentences of nine years on the first applicant and 8½ years on the second applicant.

8. The applications are allowed. The hearing of the applications is treated as the hearing of the appeals and the sentences are varied to ones of 9 years and 8½ years.