THE QUEEN v. CHENG HUNG AND OTHERS

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HEADNOTE

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                Disparity of sentence - Other person committed the offences with applicant received much lighter sentence in separate trial - Genuine sense of grievance - Sentence reduced to same level as imposed on others.

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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Li, V.-P.:

1. Originally three applicants applied for leave to appeal against conviction as well as against sentence. The first applicant, Cheng Hung, who had been convicted of 3 counts of robbery, 1 of shooting at a police station sergeant and 1 of possession of firearms when committing an offence, abandoned his application for leave to appeal against conviction and sentence. This left only two applicants, namely, Lau and Chu, the 2nd and 3rd defendants respectively.

2. Lau and Chu were convicted at the same trial of one count of robbery. Lau was acquitted of the other counts. They were sentenced to 18 years imprisonment each.

3. The evidence adduced in support of the count of robbery was that it took place at about 12.45 P. m. on the 31st July last year when four men entered the Manning Jewellery Company. The staff and customers were threatened with guns and ordered to squat down. Two of the robbers had a pistol-like object in their possession. One of them stood at the door, brandishing a revolver, and acting as a look-out man. Two of them smashed the counters, snatched the ornaments and left. The ornaments, as set out in the first count, valued over $300,000.

4. In the process of the robbery the watchman of the jewellery company was threatened at gun point. He was kicked in the chest and abdomen. However, the watchman was able to activate the remote control of the cameras. An auxiliary policeman saw the persons get into the getaway car in which a driver was waiting. All these four persons, including the two applicants, jumped into the car with their loot. Eventually the applicants were arrested.

5. The evidence against Lau was his cautioned statement in which he gave details as to the planning of the robbery. He also said he was given glue to cover his finger prints and that D1, Cheng Hung gave him a screw driver. He admitted that he was the one who took the ornaments and he received $8,000 for his work.

6. As to Chu his palm prints were found on a glass counter of the Manning Company. This evidence against him was sufficient to support the conviction.

7. In support of his application for leave to appeal against conviction the applicant Lau, said that on the 20th September last year some people pointed their guns at him and covered his head in a plastic bag. He was given what was called the water treatment (water being pumped into his nostrills). He was forced td sign a prewritten statement. Because of such violence he complied. The statement was taken from him under duress.

8. Admissibility of that statement was objected to at trial on the same ground. The judge ruled, after a voir dire, that the statement was admissible. The attack was renewed in front of the jury. In convicting Lau the jury obviously concluded that there was no substance in all those allegations. They must have relied on the cautioned statement which was the only evidence to connect him with that robbery.

9. Bau had nothing to add to these allegations which had been thoroughly canvassed in the court below. There is no substance in his application for leave to appeal against conviction. It is dismissed.

10. With reference to the third applicant Chu, he said that the jury was prejudiced. They believed a one-sided story. The finger print expert failed to tell the court the exact position of the defendant's palm prints.

11. In view of the presence of a palm print on a counter of the very shop that was robbed within a short time after the robbery occurred, the evidence Chu was overwhelming. He had nothing more to add to the grounds in support of his application. There is no substance in that application. His application for leave to appeal against conviction is similarly dismissed.

12. Mr. Adams acting for the second and the third Applicants Lau and Chu in their application for leave to appeal against sentence very fairly put their case as a serious one. He asked this court to make a distinction between firearm being carried and discharged or not discharged and queried whether there was any degrees of culpability in a robbery. He properly admitted that the firearm was carried but the two applicants were not the people who carried them. There was no injury to any person. He reiterated all that has been said in the court below and asked this court to make a distinction between whether a firearm was discharged or not. He cited the case of Ng Wai-ming and Others v The Queen ⁽¹⁾ in which a sentence of 15 years was reduced to 9 because firearm though carried had not been discharged.

13. In the course of the judgment the learned Chief Justice at p.235 said:

We consider eight years to be too low where firearms are used. Had there been shots fired in the course of this robbery, we would not have come to the conclusion that fifteen years was excessive. But the degree of violence which was used was not great. The only physical assault was that on Mrs. Leung, the Securicor guard, who was tied up and gagged, but who suffered no injuries.

 

        This was, however, a serious robbery, in the sense that firearms were carried even though they were not used. Also, there was a substantial degree of planning. Taking these factors into account, we conclude that a sentence of fifteen years is manifestly excessive. We give D.2 leave to appeal against sentence and substitute a sentence of nine years' imprisonment, instead of fifteen.

We were also informed that another person who participated in the same robbery with these two applicants and Cheng Hung was the person who carried the firearm. That person was tried separately later and was sentenced to a 12 years imprisonment. We have further been informed that the Attorney General decided not to proceed with an application for review of that sentence.

14. Having regard to the case of Ng Wai-mint ⁽¹⁾ and the sentence of 12 years on that other person we feel that the two applicants before us might well have a sense of grievance. It was the same participation in the same offence and yet there was this disparity of sentence between 12 years and 18 years. We acknowledge that the 12 years sentence may be too lenient. Had there been a sentence of 15 years we would not have interfered with that sentence.

15. Counsel for the applicants very fairly and properly submitted to this court that a sentence between 12 to 15 years would be appropriate. We take into account oaf the difference in sentence between these two applicants and the sentence imposed upon the other accused who was subsequently tried. We also have regard to the sentence that was reduced in the case of Ng Wai-ming ⁽¹⁾. we do appreciate that the tariff of sentences in similar cases have been by now raised. For these reasons we will grant both applicants leave to appeal against sentence we treat the application as the appeal proper. The appeal is allowed and the sentences of the two applicants of 18 years will be reduced to 12 years.

(1)    1980 HKLR at p.228