R. v. CHAN CHOR-FUNG AND OTHERS

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J U D G M E N T

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Sir Derek Cons, V-P:

1. On 26th August we dismissed applications by Chan Chor-fung, Lo Chi-wai Suen Fu-lam respectively the 2nd, 3rd and 4th defendants in the court below, for leave to appeal against sentences imposed upon them by Gall J. for robbery, saying that we would hand down our reasons later, which now we do.

2. The underlying facts appear sufficiently on the judgment we delivered the same day on the application of the 2nd defendant for leave to appeal against his conviction.   

3. In addition to the charge of robbery, which was common to all the defendants, the 1st defendant pleaded guilty to charges of possession of a firearm loaded with nine rounds of ammunition at the time of committing the robbery, possession of a further round in his pocket and possession of two further rounds at his home in Mongkok.

4. Having regard to the nature of the premises, the number of the robbers, the tying up of the victims and the amount of property taken the judge took 14 years to be a proper starting point for sentence on the robbery charge. He found no mitigation or other circumstance to vary that period so far as the 2nd defendant was concerned, but reduced it to 11 years for the 1st and 4th defendants on account of their pleas of guilty and further to 8 years for the 3rd defendant to reflect in addition his giving evidence at the trial and other information to the police. He further sentenced the 1st defendant to 10 years on the firearms charge and to 3 years each on the charges of possession of ammunition, but ordered them all to run concurrently with the sentence on the robbery charge.

5. One point alone was taken in the application on behalf of the defendants, based upon an observation of this court in R v Ng Wai-ming and Others [1980] HKLR 228 at 234 that if a robber did not know that firearms would be carried by others in the course of the robbery in which he was to participate, that made the robbery a much less serious matter so far as he was concerned. This point was put to the judge below. He said:

"It has been put to me generally in the course of the mitigation that a person who does not know when he goes to the scene of a robbery that firearms would be used should have a lesser sentence. In this instance, however, it is obvious from the fact that one of the five robbers did absent himself from the scene that it was possible for others to do so when they saw pistols produced. The failure to do so must militate against the reduction in sentence which otherwise might be possible for the failure to be aware of pistols prior to the start of a robbery."

6. However, with every respect to the judge below, it seems unlikely that the 5th robber "absented himself" for that reason, for only one pistol having been recovered by the police at the scene, he himself must have been the other person with the pistol-like object. In any event we think it unrealistic to suppose that these three defendants were in fact genuinely unaware that guns would be used. Some consideration must have been given beforehand to the means by which those inside the Association premises were to be subdued, and one knife, albeit 15 inches long, could hardly have been thought sufficient against a considerable number of fisher folk. In Ng Wai-ming this court felt itself obliged to assume that fact because the defendant in question had originally been charged with possession together with all the other robbers, but no evidence on that count was offered against him at the trial. That was not the situation here. No credit therefore was due in this respect and for that reason we refused the application.

7. Before leaving this appeal we would like to mention that when dealing with the 3rd defendant the judge gave credit for his "undertaking to give evidence should further persons be arrested". We think it unlikely he would have done so had his attention been drawn to the observations of this court in R v Ng Hon-kit [1991] 1 HKLR 56 at 60, repeated in R v Sze Tak-hung [1991] 1 HKLR 109 at 111:

"It is our view that, other than in exceptional cases, a court, when considering the discount to be given to an offender who has cooperated with the authorities and who has promised to give evidence against other offenders, should confine itself to what has occurred up to the date of the hearing and should not give credit for a promise to give evidence. Credit should be given for what an applicant has actually done and not for what he promises to do. Genuine cooperation and the giving of reliable information may be worthy of credit but they must be divorced from an unfulfilled promise to give evidence. Where such a promise is given, the hearing of the appeal should, if it is practicable, be postponed until after the trial of the other offender."