Case Detail

CACC000414A/1990

IN THE COURT OF APPEAL	1990, No. 414
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	TAM KWOK WAI

------------------------------

Coram: Sir Derek Cons, V.-P., Fuad, V.-P. & Kempster, J.A.

Date of Hearing: 2 September 1992

Date of Judgment: 2 September 1992

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. The applicant, Tam Kwok Wai, was originally arraigned in the High Court together with five other men and one woman upon an indictment charging them in different combinations with various offences of robbery, possession of a firearm at the time of committing robbery, shooting with intent etc. in 11 counts. The applicant was the 6th accused, and he was charged only in two counts: robbery on 19th October 1989 (count 9) and possessing a firearm at the time of committing that robbery (count 10). The 1st, 2nd, 4th, 5th and 7th accused were dealt with in various ways and only Lam Sze Ming (who became the 1st accused) and the applicant (who became the 2nd accused) were left to be tried on an amended indictment charging them jointly with the offences of robbery on 19th October 1989 near the Kau Kee Restaurant in Kowloon (count 1) and possessing a firearm at the time of committing the robbery (count 2), corresponding with counts 9 and 10 of the original indictment.

2. The applicant and Lam Sze Ming were tried before Deputy Judge Leonard (as he then was) and a jury. They were both convicted on count 1 and both acquitted on count 2. They were each sentenced to 14 years' imprisonment for the robbery.

3. The applicant seeks leave to appeal against his conviction and sentence. We mention that Lam's sentence was reduced to 9 years' imprisonment on 6th May 1992 by this court differently constituted.

4. One of the victims of the robbery charged against the applicant was Mr. Tsang Wah (PW1). He told the jury that shortly before 1 a.m. on 19th October 1989 when he had just left the Kau Kee Restaurant in Granville Road, Tsimshatsui he was surrounded by five or six men, most of whom had weapons; he first saw knives. He was grabbed from the back and a knife was put at his neck. He was pushed against a wall and robbed of various belongings, including his watch, pen and portable telephone. He was warned that if he shouted he would be stabbed. He was also threatened that he would be shot. One of the robbers had what he thought was a gun in his hands.

5. Mr. Tsang went on to testify that he shouted "robbery" as the robbers ran off towards Granville Street and Carnarvon Road and thence into Shun Yee Street. He stood at the corner of Shun Yee Street and saw two cars being driven away. He thought he recognised the robbers in one of the cars.

6. Mr. Tsang swore that he noted down the registration number of one of the cars as EA7712. When he was asked to describe the car, he said that it was late at night but the car looked white to him However, he was not sure what colour it was. He chased after the car in a taxi he managed to hail - 999 calls were made but the car got away.

7. Mr. Chan Chung Kuen (PW2) also gave evidence about the robbery which he witnessed. He had left the restaurant with Mr. Tsang and other friends. He saw the robbers making their getaway. Before he reached Shun Yee Street he saw two cars being driven away. He saw two men in one car and four men in the other. He was very close to both vehicles as they drove past him. He saw and memorised their registration numbers, EB4919 and EA7712 respectively. Although he did not see the robbers face to face when they were in the cars, he saw their profiles.

8. Mr. Chan gave evidence also about an identification parade he attended at Tsimshatsui Police Station on 16th November 1989. There were nine men on the parade. He picked out the man who was No. 3 in the line as one of the robbers. Other evidence was led before the jury to establish that that man was the applicant.

9. Mr. Chui Yick Fai testified that on 16th October 1989, at about 7 p.m., the applicant hired a pink Mitsubishi Lancer, registration number EB4919. The arrangement was that the car was to be returned by 7.10 p.m. on the next day. But the applicant had telephoned to say that it would instead be returned on 18th October but this was not done. When Mr. Chui went to work at 9 a.m. on 19th October, he found the vehicle parked outside his business premises and, half an hour later, the applicant came and gave the keys of the car to him. It was one of the agreed facts under section 65C of the Criminal Procedure Ordinance that the applicant had returned the car to the hire company on 19th October 1989.

In his police statement dated 12th November 1989, the applicant said, inter alia,

"Ah Sir, I remember that after 7 p.m. on the 17th of last month, I went to Ying Wong Motors Company in Shamshuipo alone, where I hired a private car [EB4919] intending to go for a joyride. Having hired the car, I drove it to Solar Year game machine in Kwai Fong to see if any of my friends was there. Having got there, I found my old friend Ah Chi playing video game at Solar Year game machine. Then I invited him to go for a joyride with me. Then we drove around. When we felt sleepy, I parked the vehicle at one side and went to sleep. Until shortly after 9 a.m. on the 19th, we returned the car to Ying Wong Motors Company."

This was one of the questions and answers which followed:

"Q. Did you drive the car yourself all throughout the period between shortly after 7 p.m. on 17th October, 1989 and shortly after 9 a.m. on 19th October, 1989, when you returned the car?

A. Yes, I drove the car myself in those two days.

His second statement given on the next day contains the following question and answer:

"Q. Did you leave Tai Mo Shan at any time during the period between 11 p.m. on 18.10.1989 and shortly after 9 a.m. on 19.10.1989?
A. No. All throughout Ah Chi and I slept inside the car at Tai Mo Shan."

The applicant did not give evidence before the jury and called no witnesses.

10. In the notice of appeal, complaints are made about the way counsel who represented the applicant at the trial conducted the defence (grounds 1 and 2). There are also complaints about certain aspects of the summing up (grounds 3, 3A and 4).

11. The first two grounds of appeal, in their perfected form, are as follows:

"1. It is submitted that the conviction is unsafe and unsatisfactory in that the Appellant's case was not fully put to the witnesses, so that the identification evidence was apparently supported by unchallenged evidence of the presence at the scene at the material time of the vehicle which had admittedly been hired by the Appellant.

2. It is further submitted that the instructions given by the Appellant were not fully put to the witnesses;

(a)     the registration number of a vehicle at the scene was left unchallenged;
(b)     the presence of a person referred to as 'Ah Wai' was not clarified;
(c)     it was not put to the accomplice witness that the Appellant was not present at the scene at the material time;
(d)     it was not put to the accomplice witness that the Appellant was not present at the premises at the material time."

12. With the consent of both counsel appearing before us we approached these grounds upon the basis (without so deciding) that counsel at the trial had received instructions on the lines of those mentioned above.

13. The principles upon which an appellate court will intervene where an appellant seeks to have his conviction set aside on the ground that counsel representing him at the trial conducted his defence incompetently or contrary to instructions are well settled. Several Hong Kong cases have discussed and applied these principles. We will not refer to them all. In R. v. Siu Hon Sum [1989] 1 HKLR 327, Silke, V.P. giving the judgment of the court cited, with approval, at p.335, this passage from the judgment of Cooke, J. in the New Zealand case of Pointon v. R. [1984] 1 CRNZ 348:

"A mere mistake in tactics in the conduct of the defence does not of course afford ground for a new trial. This Court has to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel. An accused who has acquiesced in his counsel's advice not to go into the witness box himself or not to call other witnesses will usually have great difficulty in showing any miscarriage of justice on that account."

And at page 337, Silke, V.-P. had this to say:

"So, an applicant who relies upon dereliction of duty on the part of his advocate and legal advisor as a ground of appeal must have a genuine sense of grievance engendered by a clearly shown very high degree of negligence on their part so radical as to give. rise to a miscarriage of justice or, at the very least, to arouse in the mind of an appellant court a well founded feeling that the convictions should be quashed."

14. Another case in which the authorities are reviewed is R. v. Ho Shu Chung, Criminal Appeal 210 of 1988, 26th September 1989 (unreported). In that case, at p.14, Power, J.A, on behalf of the court, said:

"We are respectfully satisfied that the law is correctly stated in Ensor (1989) 89 Cr App R 139, and that except in the case of flagrantly incompetent advocacy the court will not set aside a conviction on the ground that counsel has made a decision or pursued a course in the conduct of the trial which later appears to have been mistaken or unwise, even if the decision or course of conduct was contrary to the accused's wishes."

15. In R. v. Yu Fung Hei [1990] 1 HKLR 355 this court (Kempster, J.A. gave the judgment) found the errors made by counsel so radical that the conviction was held to be unsafe and unsatisfactory. What had taken place, in the court's view, had amounted to a material irregularity in the course of the trial. See also the judgment of Power, J.A. in R. v. Zee Tan, Criminal Appeal No. 48 of 1990, 23rd May 1991.

16. Other jurisdictions adopt the same approach. We find a useful summary of the applicable law in the decision of the Court of Criminal Appeal of New South Wales in Birks (1990) 48 A Crim R 385, where at p.392, Gleeson, C.J. said this:

"The relevant principles may be summarised as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

17. The principles upon which these authorities are founded concern the proper role of counsel in our system of trial, the scope of his authority and his rights and duties while his mandate remains unrecalled. These are conveniently reviewed in Halsbury's Laws of England (4th edn., reissue, 1989) vol. 3(1) paras.518-519. When a defendant engages the services of counsel he must be taken to have accepted the ordinary relationship of counsel and client and the consequences which flow from that relationship. With very great respect to him, it seems that counsel who put his name to the notice of appeal shares the applicant's misconception (see paragraph 2) that a defendant can dictate to his counsel what questions he must ask a witness and, if he does not obey, this will be a ground of appeal. Of course this is not so. Counsel's advocacy must be shown to have been "flagrantly incompetent" to avail a disappointed defendant.

18. The art of cross-examination is no easy one. Often difficult decisions, involving finely balanced judgments, have to be made. Mr. Chan (PW2) was an independent witness who swore that he saw two cars containing the men he thought had been involved in the robbery drive slowly past him round a corner as he stood on the pavement in a well lit street. He said he had "paid attention" to the cars and had tried "to memorise the numbers" because he thought the robbers were making off in them.

19. Experience has shown that it is usually profitless to take a witness over the version of events he has given in chief in the vain hope that he will change his mind and when he does not, to "put it to him" (particularly where no evidence will be called to contradict what the witness has said) that he was mistaken or lying about a matter such as the registration number of a car. If, as was to be expected having regard to the circumstances in which Mr. Chan said he noted the number EB4919, he had responded by saying that he was quite certain that he had not been mistaken, the jury would have been given another opportunity of observing the conviction with which he gave his testimony and, at the.end of the day, left wondering, perhaps, why the defence were so anxious to dispute the presence of that car on the road at that time and place. Counsel will have assessed the impression Mr. Chan was making on the jury and have made a decision which he felt was in the best interests of his client. Moreover counsel would have known from the depositions whether other witnesses were available to testify about the number of the car if Mr. Chan's evidence was challenged.

20. It is trite to say that questions put to a witness to indicate that his evidence on a particular matter is not accepted do not become evidence. It was the applicant's right not to give evidence, but he could, had he wished, have told the jury where the car he had admittedly hired was at the material time.

21. We wonder how it can fairly be argued that counsel did not act in the best interests of his client in:

(a) concentrating his cross-examination on the possibility that Mr. Chan had honestly, but mistakenly, identified the applicant while in the car in circumstances which required (and received) a full and careful Turnbull direction; and

(b) pointing out how unlikely it would be for someone to take part in a robbery where a car was use dwhich could so easily be traced to him because he was known at the car-hire firm and had given his proper name and identity car number.

We think that it is not irrelevant to observe that counsel succeeded in putting a doubt in the mind of one of the jurors, for the applicant was convicted upon a majority verdict of 6:1.

22. All that it is necessary to say about paragraph 2(b) of the notice of appeal is that no counsel of any experience will make the elementary mistake of asking a critical question unless he is reasonably sure what the answer will be. In any event, as we have seen, Miss Shek was not certain about the presence of "Ah Wai", nor did she purport to identify him in or out of court. It would have been most unwise for counsel to have sought "to clarify" this matter. The witness might have responded with blinding clarity by pointing to the applicant and saying "that's him".

23. In respect of paragraphs 2(c) and (d) of the grounds of appeal, since neither witness testified that the applicant was present anywhere at any time, it was quite unnecessary, and might have been dangerous, to seek confirmation of this fact.

24. The complaints raised in paragraphs 1 and 2 of the notice of appeal against counsel who appeared for the applicant at the trial were entirely misconceived and unwarranted. There was nothing Mr. Jeremy Cheung could say about them which had any hope of success.

25. The remaining grounds of appeal move away from the attack on defence counsel and are in these terms:

"3. The learned judge erred in law in failing to follow the 'Turnbull guidelines' when directing the jury on the correctness of the identification of the registration number of the vehicles and in particular:
as regards P.W.2
The learned judge failed to direct the jury properly on the veracity of P.W.2's memory of the registration number of the vehicles in that P.W.2's recollection of those could well be tainted with an unknown source and therefore it is dangerous to rely on that evidence.

3A. The evidence given by P.W.2 as to the manner of recording the registration number of the vehicle was hearsay and therefore inadmissible. No objection was raised by Counsel but it was incumbent upon the Learned Judge to direct the jury as to their approach to this tainted evidence.

4. Likewise grave doubt exists that the identification of the Appellant by P.W.2 may have been tainted by the joint collaboration by P.W.2 and other victims of the robbery."

26. It should not be necessary to point out that the Turnbull guide-lines are only applicable "when the case.... depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken...." per Lord Widgery, C.J. (1976) 63 Cr App R132, at p.137, although, in an appropriate case the judge might feel it right to bring to the attention of the jury any factors which could contribute to an honest mistake having been made about any particular piece of evidence, and some of these factors might coincide with those to which reference is made in the Turnbull warning. This was not such a case.

27. The references to Mr. Chan's evidence in paragraphs 3 and 3A of the grounds of appeal are references to the following passage in the transcript at page 169:

"Q. You were telling us before the break how you obtained registered numbers of the 2 cars you saw with robbers in them.
A. Yes.

Q. How did you remember the numbers?

A. One was EA7712 and the other was EB4919.

Q. Yes, you've already told us what the numbers were. How did you remember them?

A. As I have said that Shun Yee Street is running vertically and Granville Road is in a horizontal direction and, when I was standing in the junction, I saw those 2 cars rounding the corner and being driven slowly. And I paid attention to those cars and also paid attention to the people inside and I found they were the robbers who had earlier on robbed our people. And I tried to memorise the numbers of those cars. And also there were passers-by who helped to note down the registration numbers and later on we found the numbers noted down by them tallied with what we memorised."

28. We do not read this passage as suggesting that the witness did not independently observe and recollect the registration numbers about which he gave evidence. The cases relied upon by Mr. Cheung in his grounds of appeal (McLean (1967) 52 Cr App R 80 and Jones v. Metcalfe [1967] 1 WLR 1286) are not in point. In those cases it was held that there was no admissible evidence to prove the number of the vehicle in question. Here there was evidence based on Mr. Chan's own perception, although strictly speaking the evidence that "the numbers noted down by them tallied with what we memorised" was probably hearsay. However, this could not possibly have had any effect on the verdict. The judge was right to regard Mr. Chan's evidence about the numbers of the cars as not in dispute.

29. The final ground of appeal, in paragraph 4, depends upon the following passage of the transcript (at page 175), when Mr. Chan was being cross-examined:

" Q.  Would you agree with me that, when you picked a person out on that parade, it was on the basis that you were almost sure that he had been present at the incident?
A.     I disagree.
Q.     Because of the long lapse of time and the brief period of time that you had to look at these people, all that you remembered was a profile?
A.     Not only his profile.

Q.     So you picked out this person on the basis of the few seconds you had at the beginning of the incident, is that right?
A.     In my case, it's true that I only had a few seconds' look at them, but TSANG Wah, CHAN Yuk-lan, and CHOI Kwong were being robbed by them. And that incident took quite a long time. And, when we went back, we tried to recall the appearance of those people and discussed about the matter. We were able to make out the appearance of them.
Q.     And it was on that basis that you picked a person out one month later on the 16th?

A. Yes."

30. We do not agree that Mr. Chan's evidence was possibly "tainted" by any discussion he might have had with his friends about the robbers (which he was honest enough to admit). As we have earlier said, the judge gave a very full and fair Turnbull direction and in fact reminded the jury (at page 31 of the summing up) of the suggestion made to Mr. Chan in cross-examination that he had picked out the applicant "because of descriptions and discussions which had taken place between the victims after the robbery". The judge also reminded the jury of the single question and answer in re-examination:

"Q. Is there any doubt in your mind that the person you picked out at the identification parade was the person involved in the robbery?
A. I had no doubt at all. And, after I had looked at those people on parade and after I had a careful recollection of what happened on that day, I was sure that the person standing at no. 3 was one of the robbers."

31. There is no merit in this ground.

32. For these reasons we dismiss the application for leave to appeal against conviction.

[Submissions on the application for leave to appeal against sentence]

33. As we have earlier noted, Lam Sze Ming (who was the 1st accused at the trial when he and the applicant were convicted of the same robbery) was also sentenced to 14 years' imprisonment. On 6th May 1992 this court (Yang, C.J., Silke, V.-P. and Macdougall, J.A.) allowed Lam's appeal against sentence and reduced the term of imprisonment to one of 9 years. The judgment o?the court was delivered by Silke, V.-P. and is unreported.

34. All we feel it necessary to say is that we think that it is not possible to differentiate between the roles played by the applicant and Lam in the robbery. They were both aged about 20 at the time. If the applicant's sentence had been considered by the court which gave judgment on 6th May, we entertain no doubt that it would have been dealt with in the same way. We think that justice dictates that the applicant and Lam should serve terms of imprisonment of equal length.

35. We therefore give leave to appeal against sentence, treat the hearing of the application as the hearing of the appeal and allow the appeal. We set aside the sentence of 14 years' imprisonment and substitute a sentence of 9 year's imprisonment.

(Sir Derek Cons)	(K.T. Fuad)	(Michael Kempster)
Vice-President	Vice-President	Justice of Appeal

Representation:

Mr. Jeremy Cheung (Andy Lo & Co.) for the Applicant

Mr. Andrew Bruce (Crown Prosecutor) for the Crown

CACC000414/1990

IN THE COURT OF APPEAL	1990, No. 414
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	YIP Wai-kwok
	LAM Sze-ming
	TAM KWOK-wai

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Coram: Yang, C.J., Silke, V.-P., & Macdougall, J.A.

Date of Hearing: 25 March 1992

Date of Judgment: 6 May 1992

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicants appeared for trial before His Honour Judge Leonard (as he then was) sitting as a Deputy Judge of the High Court. There were seven named accused of which the first named was YIP Wai-kwok, the third named LAM Sze-ming, and the sixth named TAM Kwok-wai. It is with these only that we are now concerned.

3. Yip pleaded guilty to five counts of robbery and was eventually sentenced to a total period of 14 years imprisonment - the individual sentences being 14 years on count one, 7 years on count 4, 13 years on count 5, 13 years on count 7 and 11 years on count 9, all ordered to run concurrently. Other named accused having departed the scene for various reasons, Lam and Tam were tried jointly upon an amended indictment containing two counts, the first concerned a robbery which took place on the 19th October 1989 near the Kau Kee Restaurant in Granville Circuit, Kowloon and the second: one of possession of a firearm at the time of committing of that robbery. The single count of robbery is in the same terms as count 9 on the original indictment and to which Yip had pleaded guilty. Both Lam and Tam were found guilty by the jury of the joint robbery count. Both were found not guilty of the possession of a firearm count.

4. Yip now seeks leave to appeal against the sentences passed upon him Lam, having abandoned his application for leave to appeal against his conviction, seeks leave to appeal against his sentence of 14 years imprisonment.

5. Tam seeks leave to appeal against both his conviction and, if necessary, against sentence. He also received 14 years imprisonment. The matter not being ready for hearing, the applications of Tam were adjourned to a date to be fixed and we proceeded to hear the applications in respect of sentence by.both Yip and Lam.

6. Dealing first with the facts of the robbery offences to which Yip pleaded guilty. We would stress that there were a number of additional counts against Yip in the indictment relating to possession of firearms in the course of a number of those robberies but, upon his pleas, the Crown offer no evidence in respect of those firearm counts and he was formally acquitted.

7. Count 1: Two men entered an apartment at 500 Shanghai Street, Mongkok at 1.45 a.m. on 8th September 1989. One of them pointed a revolver and the other pointed a knife at the first man to be robbed. That man was then gagged with toilet paper, had his mouth taped with adhesive tape and his hands and legs were bound with metal wire. The second victim was slapped on the back of his neck with a knife by one of the robbers at the same time as the other pointed a gun at his face. The gun was fired and he was struck by the bullet which caused a flesh wound. He was told to squat facing the wall and his hands were also tied with metal wire and behind his back. A cleaning lady, who was the third person robbed, together with another female, who was the fourth, were blindfolded and gagged with adhesive tapes and had their hands bound behind their backs with wire. The fifth person robbed was watching television in one of the rooms in the apartment. When he opened the door he was confronted by the man with the gun. The man with the knife rushed at him and, as he attempted to ward off a blow, was injured on his thumb and middle finger. He too was blindfolded and bound with wire.

8. The sixth person robbed was the owner of the premises. Two men entered his room and woke him up, one holding a knife pointed at him, the other taping his eyes and mouth and tying his hands behind his back with wire. A seventh and final victim was also blindfolded, gagged with adhesive tape and had his hands tied behind his back with wire.

9. Pieces of adhesive tape were found at the scene and on one of them were Yip's fingerprints. Upon arrest Yip was found in possession of an identity card stolen in the course of the robbery. The Crown offered no evidence against Yip on the firearm count.

10.Count 4: Two businessmen, on 16th September 1989, went out for an evening meal and then on to a nightclub. At about 2 a.m., when one was driving the other home, their car pulled up in Woosung Street near Bowring Street so that they could have a talk. Yip, together with another man, approached them and they were told not to move. The car driver struggled and was cut near the armpit by a knife which Yip was carrying. Having told the driver to remove his watch and his wrist-chain Yip cut the side of his face with the knife. When the passenger refused to give up his wallet one of the two robbers punched him in the mouth.

11.Count 5: This took place in the male lavatory in the basement of Tsimshatsui Centre in the early hours of 24th September 1989. The first victim went there at 2.45 a.m. and entered a cubicle. While in the cubicle a man put a hand over his eyes and held a beef knife against his neck demanding money. He was pushed by two men into another cubicle, made to squat down and had his hands tied behind his back with metal wire. He was then bleeding from the cut caused to his neck by the knife. He was also cut on his left hand. He had nothing on him which could be robbed. The second victim was a worker in the basement. Upon entering the lavatory he was cut on the left side of the face with a knife. A robber held a "pistol-like object" to his head and pushed him into a vacant cubicle. His hands were also tied behind his back, his mouth taped and his valuables were taken.

12. The third victim, another worker in the basement, upon entering the lavatory was threatened by three men, one of whom had a "pistol-like object". Two other men held knives against his neck. He was robbed and then pushed into a cubicle, his hands were tied with metal wire and he was gagged with adhesive tape. The fourth victim also had knives placed against his person and the "pistol-like object" pointed at him as he entered the lavatory. He received the same treatment. The final victim was in the course of using the lavatory when one of the robbers pointed a "pistol-like object" at him and two others held knives against his neck. He was robbed, tied up and gagged in the same manner as the others.

13. Yip, on arrest, admitted to the police that he had used a beef knife to commit these robberies with other men. He denied seeing any "pistol-like object" or knowing that one was to be carried. Given that the Crown offered no evidence against him in relation to the firearm charge we must accept that the Crown were happy with that denial.

14.Count 7: This took place in the Chili Club Restaurant at Lockhart Road in Wanchai at about 11 p.m. on 17th October 1989. The staff and two remaining tables of customers were there. Two men appeared and were joined by a third who produced a Ghurka knife and loudly ordered everyone to squat down. Which they did. Other robbers, one of whom was a female, then entered the restaurant. Twelve persons had their mouths taped by adhesive tape and some of them were blindfolded with it. All had their arms tied behind their backs with metal wire. Money was taken from the cash register of the restaurant and cash, jewellery, credit cards, and identity cards were taken from each of the twelve persons. Each of them was forced to reveal their A.T.M. access code. They were threatened that if they gave incorrect numbers their fingers would be chopped off. The robbers then left. Yip, on arrest, admitted participation in the robbery and admitted that an imitation handgun seized by the police was one which was carried and displayed by one of the other robbers in the course of the robbery. Nevertheless the Crown offered no evidence on count 8: possession of a fire arm in the course of a robbery.

15.Count 9: This took place at 1 a.m. on 19th October 1989 at the Kau Kee Restaurant - and, as it is the robbery, for which Lam was convicted, these facts concern him also.

16. Four people left the Kau Kee Restaurant and on the street were met with by a group of 5 or 6 men, armed with beef knives. One of those men had a "pistol-like object" with him. The four men were robbed and one of them, the brave Mr. Tsang Wah, chased after the robbers as they fled. He lost sight of them briefly but then saw two cars each containing men whom he recognized as members of the robbery gang. He pursued one of the cars in a taxi but eventually lost sight of it.

17. On arrest, Yip admitted participating in the robbery but denied using a handgun or seeing one used by any of the other robbers in the course of the robbery. A denial which the Crown accepted.

18. At Lam's trial the second count, that is the firearm count, was charged as "the carrying of a firearm". The trial judge very carefully directed the jury that if they thought the gun was an imitation one they would be entitled to acquit Lam. If they thought the gun was a firearm as defined in the Firearms and Ammunition Ordinance, a definition which he drew to their attention, then they would be entitled to convict him. It would appear from their verdict that either the jury were unsure as to whether "the pistol-like object" was a real or an imitation firearm, or whether they accepted that Lam was not aware of either its carriage or use. It is not for us to speculate as to why the jury acquitted on that count. It is for us to consider the effect of that acquittal on the sentence of 14 years imprisonment passed upon him.

19. For the offences to which Yip pleaded guilty - and having fully in mind that he was not convicted of any firearm offence - the totality of the 14 years imprisonment passed upon him could not be faulted.

20. Fortuitously for him - this because of the period which has elapsed between the convictions in 1990 and the coming on of these appellate hearings - Yip has given evidence in court against other robbers.

21. We say "fortuitously" because where it is indicated in the course of the sentencing process that a person is willing to give evidence on behalf of the Crown in subsequent trials such a promise is taken into consideration only under the general rubric of remorse. Promises do not have the same effect as reality.

22. Here it is accepted that Yip gave evidence upon which convictions in the subsequent trial were based. This of course was not a matter known to the sentencing judge. We think it right that Yip should be given credit for his actions. To effect this we think a total sentence of 11 years imprisonment would be proper. It is necessary therefore to alter the sentences on the individual counts to give effect to this. We would emphasise that reducing the sentences individually as we are about to do is not to be taken as any indication that the original sentence imposed for the particular offence was in any way wrong. We would set aside the sentences on count 1 of 14 years, count 5 of 13 years and count 7 of 13 years and substitute for each of them a sentences of 11 years imprisonment. All sentences remain concurrent thus giving the totality which we think proper.

23. As regards Lam: in imposing 14 years imprisonment the sentencing judge bore in mind the sentence he had already imposed on Yip and the age of Lam. With great respect, he does not appear to have given effect to the verdict to the jury which acquitted Lam of the carrying of a firearm. Further, Lam faced but a single charge whereas Yip faced 5 counts. An accused should be sentenced on the basis of the evidence most favourable to him. The judge, in imposing 14 years, clearly had in mind the use of the "pistol-like object" in the robbery. That cannot be right.

24. We therefore think it proper to fall back on the general guidelines contained in R. v. Mo Kwong Sang [1981] HKLR 610. The robbery took place immediately outside the restaurant in the open street and in the evening. The persons robbed were threatened with knives and the robbers were a gang. This was obviously a planned and premeditated robbery for cars were available for a get away. Though it may be that those who were robbed were not the intended victims - it was suggested that a particular person who was thought to be carrying a large sum of money was - nevertheless they were put in fear. Taking all those factors into consideration, in our judgement a sentence of nine years imprisonment is appropriate. The sentence of 14 years is set aside and a sentence of 9 years is substituted.

25. In both cases we would give leave, treat the hearing of the applications as the hearing of the appeals and allow the appeals in the manner indicated.

(Sir T.L. Yang)	(William Silke)	(Neil Macdougall)
Chief Justice	Vice President	Justice of Appeal

Representation:

Jerome Matthews, Esq. (DLA) for D1

Daniel Marash, Esq. (John Massie & Co.) for D3

Jeremy Cheung, Esq. (Andy Lo & Co.) for D6

Miss Evena Chan for Crown/Respondent

R. v. TAM KWOK WAI

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