THE QUEEN v. NG KA LING

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J U D G M E N FT

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Penlington, J.A.:

1. This is an application for leave to appeal against sentences passed by Hopkinson J. on two counts, one of robbery and one under Section 17(2) of the Firearms and Ammunition Ordinance of possession of an imitation firearm presented during the course of that robbery. The sentences Were 7 and 2 years respectively, to be served consecutively.

2. The applicant pleaded guilty on the 20th November last year and the facts of the matter were agreed These facts are very simple The applicant entered the Commercial Bank of Hong Kong in Belcher's Street, Western District on the 7th August 1987 He went up to the cash receiving counter and pulled out a toy pistol which has been produced before us and is clearly an ordinary toy pistol which one can buy from any shop in Hong Kong. He called out "Robbery! I have a pistol Don't move." The teller was very frightened and handed him a bundle of $1,000 notes However more were demanded and the tellers continued to give the applicant money until he had received some $37,000 He told everyone to lie down, which they did, and he then left the bank.

3. However three employees ran after him, keeping their distance, following him as far as Kwau Yick Street, where they lost sight of him. An alarm had been set off and the police were also telephoned.

4. The three employees continued to look for the applicant and the police also arrived. He was eventually spotted carrying a plastic bag leaving Kwan Yick Street. The police were advised and stormed him in Belcher's Street. He was found to have the toy pistol in his trousers pocket, a bundle of 500 $10 notes in the plastic bag and some other money in his trousers pocket. He was taken hack to the hank where he was recognised and indeed a very large number of photographs had been taken of him by the surveillance cameras.

5. About 15 minutes had passed since the time of the commencement of the robbery and his arrest. A total amount was found on him of $38,000. So all the money stolen was recovered.

6. After his arrest, the applicant was questioned at Western Police Station and made a full confession. He took the police back to a building where he had changed his shirt and he gave them full cooperation. He made no effort to disguise himself in any way during the course of the crime. He has a clear record.

7. The trial judge was referred to various decisions on robberies coupled with the use of a firearm as regards the appropriate sentences, both as to quantum and as to whether the sentences passed for the robbery and for the possession of the firearm should be concurrent or consecutive. These authorities have been referred to us here.

8. Firstly, on the question of whether they should he consecutive or concurrent, what does seem clear is that in other cases where there have been bank robberies or robberies of goldsmith shops, which should be considered as similar, carried out with the use of firearms this Court has said that concurrent sentences are usually appropriate because the facts form part of one offence. These decisions are all applications by the Attorney General for review of sentence. In R. v. Chan Kin Chung and Another^(l), Roberts C.J said that a distinction must be drawn between weapons such as knives and firearms (which includes imitation firearms) but did not interfere with concurrent sentences passed, though the Court did increase them. Huggins J.A said that the facts could be distinguished from Faulkener⁽²⁾, to which we were also referred, where a weapon carried in a robbery was used to wound and consecutive sentences were rightly imposed. In R. v. Yau koon Yau⁽³⁾ concurrent sentences, though queried were allowed to stand. In R. v. Lee Ching Kwong⁽⁴⁾, Cons V.-P. approved earlier dicta in R. v. Lui Shu Tong⁽⁵⁾ that where separate counts related to one set of facts sentences would normally be concurrent This was followed in R. v. Ng Hung Kei⁽⁶⁾ and R. v. Cheung Shu Loi⁽⁷⁾, all these being robberies carried out with the use of firearms.

9. What is however also clear from those cases is that the Courts were not asked to consider that a charge under section 17(2) of the Firearms and Ammunition Ordinance can only arise if a firearm is used in the course of robbery or other scheduled offence. It reads as follows:

"17(2).     A person who, at the time of his committing an offence under any of the provisions specified in the schedule has in his possession any arms or ammunition or imitation firearm commits an offence, unless he shows that he had it in his possession for a lawful object, and is liable on conviction upon indictment to imprisonment for 14 years (without prejudice to any penalty for the first-mentioned offence).'

10. We have no doubt whatever that the clear intention of the legislature was that if a firearm Is carried during the course of committing the other offence an additional penalty should be imposed, which means a consecutive sentence in virtually all cases. In R. v. Chu Cham Wing⁽⁸⁾ consecutive sentences for robbery and carrying a firearm were approved, it being held, with respect we consider quite rightly, that the main consideration was the total sentence in relation to the overall criminality. However we consider that in principle sentences for robbery and the carrying or use of firearms during the course of the robbery should be consecutive to give effect to the intention of the legislation and the trial judge was correct in so ordering.

11. As regards the totality of the sentences passed here the trial judge said that if it had not been for the applicant's plea of guilty at a very early stage and his cooperation with the Police he would have imposed sentences of 9 and 3 years, consecutive. It is argued that the facts here do not support such a sentence and we have been referred to other cases where such sentences were passed for what seem to be far more serious offences.

12. In The Queen v.Chu Cham Hing & Others⁽⁸⁾, there were four accused who were describer as  "professional robbers". They robbed a series of goldsmith shops on five occasions. They were masked. One of them was carrying a genuine pistol and others were carrying imitation pistols. There was no recovery of property. The highest sentence was of 14 years, plus 6 months consecutive for possession of a firearm. The total criminality in that case certainly seems far removed from the facts here.

13. In R. v. Ng Hung Kei⁽⁶⁾ the defendant pleaded guilty to two shop robberies, using an imitation pistol or each occasion. It was held that a total sentence of 10 years would have been appropriate, which was reduced to 8 as it was a review.

14. In Lee Ching Kwong⁽4) the respondent was convicted on his own plea of not only of attempted robbery of a bank with an imitation pistol but of another robbery in domestic premises using a chopper and yet another one of a shop in which a shop assistant was stabbed with a knife. It was held that 12 years would have been appropriate, again reduced for the same reason to 10 years.

15. Here there is evidence, which has been accepted, that the applicant had his own business but had run into financial difficulty. He borrowed money from friends and then gambled at Macau In an effort to repay the loans. Even more foolishly he borrowed more money at Macau from loan-sharks and, inevitably, was threatened that if he did not repay the money, plus the usual enormous rate of interest, about 25% per day, he and his family would he harmed.

16. There is also very detailed and helpful medical evidence that in 1981 he had a motorcycle accident resulting in a severe head injury and that this has affected his ability to withstand stress. There is no doubt whatever that he was in a financial situation which did impose great stress even though it was the result of his own actions.

17. He would not in any way wish to suggest that a robbery of bank or goldsmith premises is not to he treated as very serious offence, as is the carrying of arms of any sort in carrying out such robbery. While this was an imitation pistol there is always a risk even where this type of pistol is used as the police, on arrival, will naturally assume that it is a genuine pistol, shots can be fired and innocent bystanders may be at risk. Nevertheless we must take into account the fact that it was an imitation pistol not a genuine one.

18. The circumstances of this particular case however show it was an offence committed by a man under great stress: he pleaded guilty immediately, albeit in the face of very strong evidence, cooperated with the Police and there was total recovery of the property. It was an isolated offence, not well planned and out of character. The total criminality is clearly very much less than the other cases referred to where very substantial sentences were rightly imposed. We do not consider that the trial judge was right when he said that if there had been a trial a total sentence of 12 years would be appropriate. Here we consider, on the very particular facts of this case, that we should reduce the sentence for the robbery count to one of 4 years' imprisonment and to 1 year for the possession of the imitation pistol, those sentences to be consecutive, making a total of 5 years.

19. we grant the application, treat this as the hearing of the appeal and reduce the sentences accordingly.

(1) Application for Review No. 12 of 1980

(2) 1972 56 Crim.App.Rep. 594

(3) Application for Review No. 12 of 1984

(4) Application for Review No. 5 of 1987

(5) 1961 H.K.L.R. 128

(6) Application for Review No. 12 of 1987

(7) Application for Review No. 17 of 1987

(8) Criminal Appeal 586 of 1986