R. v. PANG CHUN WAI

IN THE COURT OF APPEAL

1992, No. 7
(Criminal)

Headnote

SENTENCE - Life imprisonment - Armed robbery - Practice in Morgan [1987] Cr.App.R. (S) 201 should be followed, where sentencing judge considers life imprisonment may be appropriate - Following criteria in O'Dwyer [1988] 86 Cr.App.R.313 Court of Appeal set aside sentence of life imprisonment and substituted one of 18 years' imprisonment.

IN THE COURT OF APPEAL

1992, No. 7
(Criminal)

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C O R R R E C T I O N

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In the judgment of the court delivered on 26th May 1993 reference was made, at page 9, that we noted that the trial "... judge raised with the prosecution a matter which, in fact, was irrelevant to the case ...". This had reference to further proceedings concerning a charge of manslaughter arising from a different robbery. We also stated that we did not know where this information came from.

We have now become aware, a matter of which we were not informed at the hearing, that the original indictment had contained a count of manslaughter and further counts of robbery. That indictment was severed by the trial judge and an amended indictment was filed which contained the counts to which the applicant had pleaded guilty and been sentenced - from which sentences he appealed.

The query raised by the judge, a very proper one, was intended to ascertain the position as to the remaining counts in the original indictment and when they might be tried.

The comment "In our judgment, it was not a matter the judge ought to have raised with the prosecution at all" is withdrawn. Any criticism of the judge's conduct which might emerge from the judgment was, in the light of the information we now have, unwarranted.

IN THE COURT OF APPEAL

1992, No. 7
(Criminal)

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Coram: Hon. Yang, C.J., Silke, V.-P. and Litton, J.A.

Date of hearing: 14 May 1993

Date of delivery of judgment: 26 May 1993

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J U D G M E N T

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Litton, J.A.:

1. The applicant PANG Chun-wai was convicted on four counts of robbery and possession of firearms on 13 December 1991, after trial in the High Court. The counts in the indictment on which the applicant stood convicted were counts four to seven. They related to crimes committed on 8 September 1990 and 11 September 1990. In relation to robbery he was sentenced to life imprisonment, whilst for possession of firearms he was sentenced to 12 years' imprisonment. Originally, the applicant faced a total of eight counts. Of relevance now are the following:

Second Count STATEMENT OF OFFENCE Robbery, contrary to section 10 of the Theft Ordinance, Cap. 210. PARTICULARS OF OFFENCE PANG Chun-wai, on the 7th day of September, 1990 at No. 11, Wai Yan Street, Tsz Chong House, Tai Po, New Territories, Hong Kong, together with other persons unknown, robbed CHENG Yin-ma of a 'Rolex' watch, cash $2,000 Hong Kong currency, a gold Nanyang Commercial Bank Master card, a Hong Kong Identity Card, a Hong Kong Driving Licence and a string containing three pieces of jade.

Third Count STATEMENT OF OFFENCE Possession of a firearm at the time of committing a robbery, contrary to section 17(2) of the Firearms and Ammunition Ordinance, Cap. 238.

PARTICULARS OF OFFENCE PANG Chun-wai, on the 7th day of September, 1990 outside the lift of No. 11, Wai Yan Street, Tze Chong House, Tai Po, New Territories, Hong Kong, together with other persons unknown, had in his possession a firearm, namely a type 54 semi-automatic pistol, at the time of committing a robbery.

Fourth Count STATEMENT OF OFFENCE Robbery, contrary to section 10 of the Theft Ordinance, Cap. 210.

PARTICULARS OF OFFENCE PANG Chun-wai, on the 8th day of September, 1990 inside the business premises of Hutchison Paging Limited, No. 245B, King's Road, ground floor, Causeway Bay, Hong Kong, together with other persons unknown, robbed CHEUNG Tsui-ping of cash $26,000 Hong Kong currency.

Fifth Count STATEMENT OF OFFENCE Possession of a firearm at the time of committing a robbery, contrary to section 17(2) of the Firearms and Ammunition Ordinance, Cap. 238.

PARTICULARS OF OFFENCE PANG Chun-wai, on the 8th day of September, 1990 at the business premises of Hutchison Paging Limited at No. 245B King's Road, ground floor, Causeway Bay, Hong Kong, together with other persons unknown, had in his possession a firearm, namely a type 54 semi-automatic pistol, at the time of committing a robbery.

Sixth Count STATEMENT OF OFFENCE Robbery, contrary to section 10 of the Theft Ordinance, Cap. 210.

PARTICULARS OF OFFENCE PANG Chun-wai, on the 11th day of September, 1990 on board a private car EN 882 in the New Territories, Hong Kong, together with other persons unknown, robbed WONG Hon-ping of cash $1,200 Hong Kong currency, a 'Rolex' watch, a Hong Kong Bank credit card, a Citibank credit card, a Standard Chartered Bank Moneylink card, a driving licence and a Hong Kong Identity Card.

Seventh Count STATEMENT OF OFFENCE Possession of a firearm at the time of committing a robbery, contrary to section 17(2) of the Firearms and Ammunition Ordinance, Cap. 238.

PARTICULARS OF OFFENCE PANG Chun-wai, on the 11th day of September, 1990 on board a private car EN 882, in the New Territories, Hong Kong, together with other persons unknown, had in his possession a firearm, namely a type 54 semi-automatic pistol, at the time of committing a robbery.

2. As to the second and third counts, the applicant was acquitted. Counsel for the applicant submits that his convictions on counts four and five are inconsistent with his acquittal on counts two and three, and therefore should be set aside by this court as being unsafe and unsatisfactory. We will deal with this point later on.

3. The totality of the evidence against the applicant fell within two areas: (1) a written statement the applicant made at the Hong Kong Island Police Regional Headquarters in the afternoon of 12 September 1990 (exhibit P15) and (2) identifications made by two witnesses : a lady, Cheung Tsui Ping, regarding the robbery in the premises of Hutchison Paging on 8 September 1990 (counts four and five) and Mr. Wong Hon-ping, the driver of a Mercedes Benz registration No. EN 882, regarding the robbery on 11 September 1990 (counts 6 and 7).

Confession statement

4. The applicant was arrested following a shoot out with the police on 11 September 1990. On the morning of 12 September 1990 the police had found, in the boot of a private car, a plastic bag containing a red-star brand semi-automatic pistol and bullets. When the applicant was interviewed at 4.30 p.m. on 12 September 1990 he was questioned about that. The applicant told the police that a friend, Ah Ngau alias Li Kwok, had obtained the pistol about a week before and they had then decided to go and "find money in partnership" using the pistol. He then, in his statement, proceeded as follows:

"However, I do not recall the exact dates. The first case, at a place unknown (to me) in Tai Po Market, with the pistol, Ah Ngau and I 'Lup' a male of a 'Kam Lo', cash $2,000 and some things such as identity card and credit card. The second case, at a Hutchison Paging Centre near Olympia Theatre, King's Road, North Point, Ah Ngau and I used the pistol and 'Lup' (and obtained) cash $20,000 odd. The third case, at a place unknown (to me) in Shatin, Ah Ngau, Ko Lo Ming and I boarded a 'Mercedes Benz' and used the pistol to take a male against (his) will and 'Lup' him of an antique Rolex watch. However, we were chased by the Police to a place unknown (to me) in Shamshuipo where Ah Ngau used the pistol to fire a shot towards the policemen. The policemen had returned fire. However, I do not know how many shots the policemen had fired. Then, we made good our escape".

5. By 'Lup', the applicant meant to rob and by 'Kam Lo' he meant a golden Rolex watch.

6. The judge, in his summing up, gave a full direction to the jury concerning the statement and left it to them to evaluate its weight. No criticism has been made of the summing up in this regard.

"Inconsistent verdicts"

7. Counsel's point on appeal is simply this: where the applicant, in exhibit P.15, refers to the "first case" at the Tai Po Market, he must have been referring to the occurrence on 7 September 1990, as particularized in counts two and three of the indictment. The jury's acquittal of the applicant on counts two and three necessarily means that they were not prepared to place any weight on the confession statement. If, evidentially, exhibit P15 was insufficient to sustain a conviction on counts two and three, how then, counsel asks, was it sufficient to sustain a conviction on counts four and five?

8. As regards counts four and five, the victim of the robbery was Miss Cheung Tsui-ping, who was bound up and robbed of $26,000. She gave evidence to the effect that when the robbery at the Hutchison Paging Centre took place, the lights were on and the incident took about 15 minutes. Although she was tied up, she could see. However, when it came to identifying the robber at the identification parade, whilst she did pick out the applicant in the line up as the robber, she said she could not be sure. The matter was left in this way by the judge in his summing up:

"Now members of the jury, what I tell you about that in view of those answers that she gave, is that it would be unsafe to rely upon her identification evidence. If it stood alone it would be unsafe to rely on that. The crown, however, say 'well he has given an admission with regard to those counts'......"

9. Based on the above, counsel for the applicant makes two points:

(1) For all practical purposes, the alleged identification by the victim in counts four and five should be disregarded. This then leaves exhibit P15 as the only remaining piece of evidence against the applicant.

(2) As the jury, by their verdict of not guilty in relation to counts two and three, had demonstrated that they were not prepared to convict on the basis of exhibit P15 alone, the conviction on counts four and five therefore cannot stand.

10. There are, in our judgment, two flaws in this argument. First, the identification by the victim in counts four and five, though not positive, was plainly of some evidential value. The judge quite rightly cautioned the jury against placing too much weight upon it, but he did not withdraw it from the jury's consideration. The jury was quite entitled to take the cumulative effect of the identification by Miss Cheung together with the confession in exhibit P15 to convict the applicant on charges four and five. Second, there could have been other circumstances, apart from the supposed lack of evidential weight in exhibit P15, why the jury acquitted the applicant on charges two and three: for instance, the fact that the victim in those counts, Cheng Yin-ma, turned out to be a bad witness and gave a poor account of the circumstances of the robbery at Tai Po on 7 September 1990. When the point was put to counsel for the applicant at the hearing, he readily accepted that Cheng Yin-ma was, in fact, a poor witness. This goes a long way to explaining the applicant's acquittal on counts two and three.

11. In our judgment, the appeal against conviction in relation to counts four and five must fail.

12. As regards counts six and seven, the victim was the driver of a Mercedes Benz which was boarded at gun point by the applicant and his accomplice Li Kwok. The latter managed to escape capture by the police. The victim Wong Hon-ping had undergone a frightening experience. At the identification parade conducted on 25 September 1990 the victim made a positive identification of the applicant. The evidence against the applicant on counts six and seven was unimpeachable. The appeal against conviction on counts six and seven must fail.

Sentence

13. The applicant was, at the date of the two robberies, nearly 33 years of age. He had been released from prison about eight months before, after having served a sentence of nine years' imprisonment on two counts of robbery, for which he was convicted in April 1984.

14. When the judge came to deal with the question of sentence, the applicant took a most unusual course. He instructed counsel to say nothing on his behalf. The court therefore knew nothing of his antecedents, beyond the fact of his previous convictions for robbery, and that he was divorced but had a young daughter aged 11 who was in court that day.

15. The judge took the view that the applicant was a hardened criminal, with no chance of rehabilitation and that his primary duty was to protect the public. On the meagre evidence before the court, and having regard to the apparent lack of remorse on the applicant's part, it seems to us that this was a view which the judge was entitled to take.

16. The question, however, is whether in the circumstances of this case a sentence of life imprisonment on each of the counts of robbery was justified.

17. At the hearing we were referred to The Queen v. So Ching Kwan Cr.App. 439 of 1991 where a sentence of life imprisonment for manslaughter committed in the course of armed robbery of a goldsmith shop was upheld by this court. For the robbery and related offences, the sentences cumulatively came to 25 years' imprisonment.

18. The researches of counsel indicate that the present is the first case in Hong Kong where a sentence of life imprisonment has been passed for armed robbery where no-one was killed. Plainly for such crimes, a lengthy sentence of imprisonment is the only option available. Under the provisions of Rule 69A(2) of the Prison Rules, Cap. 234, the Commissioner of Correctional Services is required to submit to the Governor for review sentences of imprisonment for life, and likewise for sentences of 10 years or more, after the first five years, and thereafter every two years. The difference between a fixed term of imprisonment of 10 years or more, and life imprisonment, is this: in the latter case no question of remission under Rule 69(1) can apply. The person sentenced to life imprisonment faces the prospect of very lengthy incarceration, with no hope of release in the horizon.

19. In the course of submissions counsel has referred us to the case of Morgan [1987]9 Cr.App.R.(S.) 201 where the Court of Appeal suggested that, where the judge had in mind a sentence of life imprisonment, he should inform counsel of that fact and invite submissions on the point. We agree with this practice. Unfortunately, this was not adopted in the present case.

20. The main criteria for imposing a sentence of life imprisonment have been laid down by the courts for some time. They were recently reaffirmed by the English Court of Appeal in O'Dwyer (1988) 86 Cr.App.R. 313 as follows:

(1) The offence must in itself be grave enough to require a very long sentence;

(2) either the nature of the offences or the defendant's history indicates that he is a person of unstable character likely to commit such offences in the future; and

(3) if such offences were again committed, the consequences to others would be specially injurious, as in the case of crimes of violence or sexual offences.

21. These criteria are equally applicable in Hong Kong. In relation to the first criterion stated in O'Dwyer, the judge was plainly right in this case, particularly in relation to the conviction on the sixth count. The judge said this:

"The circumstances of the sixth count where you kidnapped this man and drove him around with the gun against him are really quite horrifying. Those who are prepared to utilise violence on the citizens of Hong Kong armed with guns should ...... receive no mercy. I do not distinguish between the circumstances of the fourth count where you robbed and tied up that young lady in the Hutchison Paging Centre with the circumstances of the sixth count."

22. Whether this case satisfies criteria (2) and (3) stated in O'Dwyer is more difficult to determine.

23. Normally, in cases where defendants have been sentenced to life imprisonment, homicide is involved; there would often be psychiatric reports before the court. The court would then have expert evidence from which it might be inferred that the defendant is a person of unstable character and is likely to subject the community to crimes of violence in the future, should he be released from prison. In the present case, all that the judge had to go on were the following factors: (a) The applicant had committed two previous armed robberies for which he was sentenced to nine years' imprisonment in August 1984; (b) the circumstances of the two crimes in September 1990; (c) the applicant had shown not the least remorse. Is this enough? In our judgment, the answer is no.

24. We note from the transcript of the trial that after the jury had given their verdict, the judge raised with the prosecutor a matter which, in fact, was irrelevant to the case: namely, that the applicant was also facing trial on a charge of manslaughter arising from another robbery which had occurred on 21 May 1991. We do not know where this information came from. It seems to have been something the judge read from the file. Although the judge, in his reasons for sentence, did not in any way advert to this matter, this might have subconsciously influenced his decision on sentence. In our judgment, it was not a matter the judge ought to have raised with the prosecutor at all.

25. Life imprisonment is, needless to say, the maximum penalty for counts four and six. The maximum penalty should generally be reserved for the worst case; the circumstances of these two crimes do not indicate the worst which have come before the courts.

26. In our judgment, the imposition of life imprisonment on counts four and six was, in the circumstances of this case, both wrong in principle and manifestly excessive.

27. We set aside those two sentences, and impose a sentence instead of 18 years' imprisonment on counts four and six, to run concurrently.