THE QUEEN v. WONG CHI-FAI AND ANOTHER

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JUDGMENT

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Nazareth V-P (giving the judgment of the Court):

1. The two applicants, Wong Chi-fai and Wong Shui-hing, each pleaded guilty before Stock J on 25th April 1996 to 2 counts of robbery. These were count 1 and count 3. Both the applicants were convicted on their pleas and sentenced. They now apply for leave to appeal against their sentences.

2. The first robbery, which is the subject of the first count, took place on 25th October 1995 at the Fung Cheong Store, Lek Yuen Estate, Shatin. Very early that morning the 71-year-old proprietor opened his shop and very shortly afterwards he was robbed by the two applicants and another man named Lau. The 1st applicant, Chi-fai, held a long knife to the victim's neck. The victim was then tied up, blindfolded and had his mouth taped. $9,000 in cash, 4 bottles of cognac and 25 boxes of cigarettes were taken. The total value of the stolen property was estimated by the proprietor at $17,580. Later that day Lau bought an imitation firearm from a toy shop. The judge who had the imitation firearm produced to him described it as realistic, solid, large and intimidating in appearance.

3. The applicants and Lau that same night went to the Hing Fat Canteen, also in Shatin, as it was closing. There they committed the second robbery. The victims were an elderly woman and her two sons. The imitation firearm was pointed at the woman's head, apparently by Lau. Chi-fai brandished the long knife. The victims were tied up. Their mouths were taped and they were shut in a toilet. $7,000 in cash, a pen and a watch were taken. This robbery was the subject of the 3rd count.

4. It certainly cannot be suggested that the judge did not accord the greatest care and anxious consideration to the sentences if regard is had had to the lengthy submissions he received upon sentencing and his reasons which are recorded in 4½ pages of dense typescript. He took as his starting point 8½ years for the 1st count. We do not think he can be faulted in this given the guidelines in R v Mo Kwong-sang [1981] HKLR 610. He took as his starting point 12 years in respect of the 2nd count. Again, having regard to the same aggravating factors that were present in the first robbery and the additional very serious factor that an imitation firearm was pointed to the woman victim's head, we think that the 12-year starting point he took in respect of the 3rd count was also unobjectionable. We note that counsel for the applicants below conceded that a starting point of that order was indicated.

5. The judge, having identified the starting point, turned to the mitigating factors pertinent to Chi-fai, his age of 23 years; his early confession and his plea of guilty, albeit countered in some measure by the strength of the evidence against him. He also took into account the assistance Chi-fai gave to the police and his remorse evident in his attempts to commit suicide. He sentenced him to 5 years on the 1st count and 7 years on count 3. The robberies, having been separate and distinct offences, consecutive sentences were indicated. But having regard to the totality of 12 years, the judge made only 2½ years of the latter sentence consecutive, producing a substantially reduced total of 7½ years.

6. In his written notice of application Chi-fai relies upon three grounds:

All three matters were accepted by the judge and plainly given consideration.

7. The initial assessment of totality the judge made by reference to the starting point clearly did not affect his ultimate assessment of the "overall term" by which he resolved the matter of totality. In that process, he first expressed the view that 13 years was the appropriate starting point rather than the 20½ years consecutive aggregate. But having then addressed the mitigating factors, he arrived at the sentences he imposed of 5 years and 7 years. These, as we have said, produced a total of 12 years which he regarded as too high, reducing that to a total of 7 years by making the latter consecutive as to 2½ years. We see nothing wrong with those sentences, which were neither manifestly excessive nor wrong in principle. They seem to us right. But in response to the 1st applicant's grounds, we point out that the result represents a very large discount from the starting point, of the order of two-thirds. That sort of discount is usually accorded only to defendants in the "supergrass" category which plainly the 1st applicant is not. Clearly he was fully rewarded for his early plea of guilty and assistance to the authorities and had all the mitigating circumstances taken into account. There are no grounds before us which would warrant our reducing the sentence further.

8. Turning to Shui-hing, the judge similarly noted that he was 25 years old, that he had recent convictions of a serious nature which meant he could not be treated as a person of good character. He had taken a full role in both robberies. The judge gave full credit for his confession to the police and his plea of guilty. He sentenced him to 6 years imprisonment on the 1st count and 8½ years on the 2nd count, 3½ years of which was to run consecutively, making a total of 9½ years.

9. In his written grounds for leave to appeal against sentence, Shui-hing relies principally on one point, i.e. that the judge wrongly treated him as the ring leader. In a further communication to the Court dated 14th August, he refers to a number of matters which do not add to that ground. The short answer is that the judge did not regard him as the ring leader. There is no reference to this in the judge's remarks. What the judge said was that he played a full role in the two robberies and that is plainly right.

10. The sentence the judge imposed upon Shui-hing was higher than that on the 1st applicant but his reasons for that are obvious. He did not give the authorities the sort of assistance that the 1st applicant did. Nor was there evidence of remorse which there was in respect of the 1st applicant.

11. There is, in our view, no merit in Shui-hing's application.

12. In the foregoing circumstances leave is refused to both applicants.