Case Detail

IN THE COURT OF APPEAL

1993,No.273
(Criminal)

HEADNOTE

Conspiracy to commit robbery using a pistol – offences committed in 1989 - appeal against sentences of 16 years and 12 years - the judge took a starting point of 16 years - in 1991 an armed robbery committed in a public place putting ordinary members of the community at risk merited a sentence of between 12 and 15 years - appropriate starting point would have been 13 years - sentences reduced to 13 years and 10 years.

IN THE COURT OF APPEAL

1993, No.273
(Criminal)

BETWEEN

THE QUEEN

and

WONG CHI-PAN
LAM KING-HANG

__________________

Coram: Hon. Power, Ag.CJ., Litton, V,-P. & Bokhary, J.A.

Date of Hearing: 4th May 1995

Date of Delivery Judgment: 12th June 1995

__________________

J U D G M E N T

__________________

Power, Ag. CJ. (giving the judgment of the Court):

1. The applicants were convicted after trial before Leonard J and a jury of the offence of conspiring to commit robbery. They were sentenced on 21st May 1993. WONG Chi-pan, A1, was sentenced to 16 years and LAM King-hang, A2, was sentenced to 12 years. The offence had occurred between September and December 1989. At the time of the offence A1 was 29 and A2 was 24. Two others, PW1 and PW2 at trial, were aged 20 and 23 respectively at the time of the offence. The trial judge said when sentencing:

"WONG Chi-pan and LAM King-hang have been convicted after a trial by a jury of a conspiracy to rob. The conspiracy to rob extended over a period of some three and a half months and it contemplated the use of a loaded pistol.

WONG selected several vulnerable premises as potential targets such as a gold shop, a watch-shop and a finance company. On the evidence, he was the leader of the conspiracy, even though it is clear that it was not intended that he should personally take the risk of taking part in any robbery.

So far as LAM King-hang is concerned, my impression after hearing the evidence is that he deliberately refrained from participating in the robbery, and his conduct prior to that case gives me support for that view. I feel that I ought to take his apparent reluctance to go through with the scheme into account.

Bearing in mind the evidence which came out in the trial and the submissions I have heard from counsel, and bearing in mind also the sentences which I have already imposed on the two conspirators who did commit the robbery together with other offences, I sentence the accused as follows: WONG Chi-pan is sentenced to sixteen years’ imprisonment and LAM King-hang to twelve Years' imprisonment."

2. Both of the applicants appeal against that conviction. A1 withdrew his appeal on the morning of the hearing. A2 pursued his appeal which was in the event unsuccessful. A1 now seeks leave to appeal against sentence and A2 seeks leave to appeal out of time against sentence.

3. Mr. Grounds appears for A1. A2 is in person.

4. Mr. Grounds originally sought to argue two matters - (1) the sentence of 16 years was manifestly excessive and wrong in principle as the proper starting point for a substantive count of robbery where a firearm was brandished was, in 199l when the offence was committed, in the region of 10 years; (2) the judge wrongly apportioned too much blame to A1 in comparison with A2 as the evidence show that A2 was "very much the source and originator of the conspiracy as well as being involved m the planning of potential robberies and evincing an intention to play an act or role therein". He submitted that the sentence of 16 years was disproportionate to the sentence of 12 years imposed upon A2.

5. The conspiracy involved the planning of five robberies, only one of which, the last, was actually carried out. A1 played no part in either the planning or the execution of that robbery and A2 played no part in its execution.

6. The original idea of committing a robbery which gave rise to the conspiracy came from the A2 who suggested it to PW2. He also suggested that they should obtain a gun in order to carry it out. PW2 then approached A1 who put him in touch with a man named Siu Ming who provided the gun. It was A1 who selected the target which was a goldsmith shop m Apliu Street, Shamshuipo. It was at this stage that PW1 became involved. PW2 was to carry the gun. This robbery was abandoned because of the risk associated with it. Both PW1 and PW2 were reluctant to go on with it because of frequent police patrols. A1 had undertaken, should the robbery have been successful, to help dispose of the proceeds. While it is true that A2 suggested robbery in the first place and suggested the obtaining of the gun, it was A1 who effected the introduction whereby the gun was obtained. It was A1 who selected the target premises and it was A1 who was to dispose of the proceeds. A1 then selected a second target. This was the King Fook Watch Company. He also indicated to his fellow conspirators a possible escape route. Again it appears PW1, PW2 and A2 were to do the robbery and were to make the decisions as to its execution. However again it was A1 who was to dispose of the goods. In the event this robbery was called off by PW1.

7. The next target selected was the Yin Lee Finance Company which was above the Wing On Department Store in Mongkok. Again that target was selected or, as the witnesses themselves described it "introduced", by A1. A2 and PW1 were to carry out this robbery. It appears that PW2 was not interested in it because of the small amount that was expected to be gained therefrom and on this occasion he gave the gun to PW1. Again this robbery was called off because there did not appear to be a suitable escape route.

8. The next robbery was to be at jewellery shop in Peking Road. Again the target was selected by A1 but this robbery was called off because PW1 had formerly worked in that vicinity. It seems that A1 then became disillusioned with the lack of resolution of his co-conspirators and told them to select their own targets saying that if they did not do the large ones selected by him they could do small ones which they selected themselves. In the event PW1, PW2 and A2 selected the Standard Chartered Bank. It was they who surveyed the scene and made plans for the robbery. A2 did not, however, turn up as arranged and the robbery was carried out by PW1 and PW2. PW1 said that after the robbery A1 telephoned him and told him to have a hair cut and to change his clothes and to meet him at a factory building. He said he and PW2 met A1 and that from the proceeds of the robbery which totalled $108,000 A1 received $8,000 which was said to be to pay for the gun, and $30,000 which was said to be to borrow two more guns, and that he borrowed $5,000 from PW1 and the same amount for PW2. Whatever the amounts may have been for, A1 received after the robbery a total of $48,000.

9. Mr. Grounds submits that the trial judge was wrong when he referred to A1 as “the leader of the conspiracy”. We agree that issue might be taken with the use of the term “leader”. It seems to be clear that A1 was not to be involved in the field planning or in the operation itself. He was, however, the person who arranged for the gun to be obtained, the person who, in four of the cases, selected the targets and who was, in two of the cases at least, to dispose of the proceeds. He was further the person who, after the final robbery, gave instructions and received a major part of the proceeds of the robbery. He seems clearly to have been the kind of shadowy criminal entrepreneur who protects himself by his abstaining from involvement in the actual robberies. He can nonetheless, properly be regarded as the key figure in the operation. The judge, while he may not have used the most appropriate term to describe his involvement, was we are satisfied, right to regard him as the most culpable of those who were involved.

10. We have been referred to a number of cases which indicate that sentences for armed robbery committed in 1991 ranged from 10 years upwards. We are satisfied that Mr. Saw, who appeared for the Crown, was right in his submission that in 1991 an armed robbery committed in a public place putting ordinary members of the community at risk merited a sentence of between 12 and 15 years. We bear in mind that the four robberies in the planning of which A1 participated did not actually occur and that he was not involved in the planning of the fifth robbery. We are satisfied that the appropriate starting point would have been 13 years and that the judge was wrong to take a starting point as high as 16 years.

11. Before determining the sentences which should now be imposed upon A1 and A2, we deal with a third ground of appeal which Mr. Grounds was given leave to argue. In this ground he contended that A1 was entitled to a reduction in any sentence imposed because of his endeavour, since sentence by the trial judge, to co-operate with and assist the police. We allowed an affidavit from Mr. Simon Henry Cleves of Legal Aid Department to be placed before us. This affidavit indicated that while in custody A1 had given information about people who he said were involved in a robbery planned to take place in the middle of 1992 and for which six guns had been obtained. Mr. Saw for the Crown said that the view of the authorities was that this information did not warrant any action and that it did not lead to any concrete result. As this Court has made clear in the past, information given to the police which does not have concrete results will only in exceptional cases be regarded as worthy of weight as a mitigating factor.

12. We turn now to the assessment of the sentences for A1 and A2. After trial we are satisfied that the proper starting point for A1 was 13 years. We take the view, as did the trial judge, that there is nothing that would warrant us going below the starting point and we therefore order that the sentence of A1 be varied from one of 16 years to one of 13 years. We are satisfied, as was the trial judge, that A2 was less culpable than A1 and that his sentence must therefore be adjusted accordingly. We take into account, as did the trial judge, his refusal to participate in the final robbery. We think it appropriate that he should serve a sentence of 10 years and we therefore order that his sentence be varied from one of 12 years to one of 10 years.

13. The hearings of the applications will be treated as the hearing of the appeal and the sentences will be varied as indicated above.

(N.P. Power)
Ag. Chief Justice

(Henry Litton)
Vice-President

(S.KS. Bokhary)
Justice of Appeal

Mr. D.G. Saw, S.A.C.P. and Miss Agnes Chan, C.C. (Crown Prosecutor) for the Respondent.

Mr. Christopher Grounds assigned by D.L.A. for 1st Applicant.

2nd Applicant in person.

CACC000273/1993

1993, No.273
(Criminal)

IN THE COURT OF APPEAL

_____________

BETWEEN
	THE QUEEN	Respondent

	AND

	LAM KING HANG	Applicant

_____________

Coram: Hon Power V.-P., Ryan and Stuart-Moore, JJ. in Court

Date of hearing: 29 July 1994

Date of handing down judgment: 20 September 1994

_______________

J U D G M E N T

_______________

Ryan, J:

1. This is the judgment of the court.

2. The applicant was charged with Wong Chi Pan that between the 1st September 1989 and 13th December 1989, they conspired with Lam Kwok Hung and Yam Chik Sang to commit robbery. He was convicted after trial before Leonard, J. and a jury. We refused leave to appeal against that conviction and said we would hand down our reasons, which we now do.

3. Lam Kwok Hung (PW1) and Yam Chik Sang (PW2) had earlier pleaded guilty to a charge of having robbed the Standard Chartered Bank, Cheung Sha Wan Road Branch. They gave evidence in the trial that in September 1989, the applicant, his co-defendant Wong and they had entered into an agreement to carry out a robbery. The target premises had not at that point in time been selected but to assist them to put the plan into effect a pistol was purchased.

4. The first premises inspected by the conspirators was a goldsmith shop and the applicant, PW1 and PW2 went on several occasions to the locality with the intention of carrying out a robbery of that shop. They carried with them the pistol and other paraphernalia to enable them to carry out the robbery. The plan was on each occasion aborted because of either the applicant or PW1 claiming to have seen police patrolling in the area. The next premises inspected was a jewellery shop but the plan to rob that shop was abandoned when PW1 got cold feet. They then considered the robbery of a watch shop, but both PW1 and the applicant were not satisfied that the premises was suitable for their purposes. They then viewed a finance company, but after inspection the applicant advised them not to proceed because the escape route was not satisfactory. The last premises considered was the Standard Chartered Bank, Cheung Sha Wan Road Branch. PW1, PW2 and the applicant decided the premises were satisfactory and fixed a date on which to carry out a robbery. However, the applicant did not keep the appointment with PW1 and PW2 as he had something else to do, and they therefore postponed the robbery to the following day. The applicant was advised of the change of plans, but on the following day when he failed to appear, PW1 and PW2 proceeded to carry out the robbery in his absence. No explanation was given for his absence.

5. The applicant did not give evidence at the trial, but the defence put through cross-examination of PW1 and PW2 was that the applicant had never been a party to such a conspiracy.

6. In respect of the offence of conspiracy, the learned judge gave the following direction:-

"A conspiracy is simply an agreement to commit a crime. Robbery is a crime. A conspiracy to commit a robbery is in itself a crime, whether the robbery takes place or not. Before you convict you must be sure the defendant agreed with the others named in the indictment that one or more of them would commit robbery. If you find that the defendant entered into that agreement, then you may convict him.
Look at all the evidence. If you are sure there was an agreement that a robbery be carried out and the defendant was a party to that agreement, you can convict him."

7. The grounds of appeal argued by Mr Lunn who appears for the applicant are that the learned judge failed to direct the jury that at the time the applicant entered into the agreement to rob, he intended that the agreement be carried out; and that in the light of the evidence that the applicant had prevaricated on the earlier occasions when suitable opportunities for robbery were sought, his absence at the robbery of the Standard Chartered Bank and his absence on the earlier date planned for that robbery, the omission to give a direction as to the applicant's intention as an ingredient in the offence of conspiracy renders the verdict unsafe and unsatisfactory.

8. It is Mr Lunn's argument that having directed the jury that they had to be sure that the defendant had agreed with the others that one or more of them would commit a robbery, it was incumbent on the learned judge to further direct the jury that they also had to be sure that the applicant had intended that the robbery would be carried out. He argues that if such a direction had been given, it would have been open to the jury to find the applicant not guilty on the ground that he lacked the necessary intention.

9. Mr Cross who appears for the Crown concedes quite properly that mens rea is an element in the offence of conspiracy which the Crown has to prove. He also concedes that the learned judge was in error in not giving the jury a direction to this effect. In our view, this was a concession that he should not have made. The learned judge fairly directed the jury on the only issue raised by the defence, namely that PW1 and PW2 were liars and that the applicant was never a party to the conspiracy. Once. the jury had decided that it had been proved that he was a party, there was then no evidence upon which they could have reached a decision that, despite such agreement, the applicant had never intended that the plan to rob should proceed. On the contrary, the evidence was that he had been a party to all of the earlier planning and had on several occasions gone to various locations with PW1 and PW2, carrying with them a pistol and other robbery paraphernalia, intending to carry out a robbery. The evidence was that those plans had been aborted because of outside factors: such as the presence of patrolling police officers, or the inadequacy of the escape route. There was no evidence that the applicant had, at any time, expressed a desire that the robbery should not proceed. For the learned judge to direct the jury to consider a defence based on a lack of intention would have been to invite the jury to ignore the evidence and to enter into the realms of speculation. He was right not to have done so.

10. There is nothing in the grounds of appeal which makes the verdict, in any way, unsafe or unsatisfactory.

(N.P. Power)	(T.J. Ryan)	(M.Stuart-Moore)
Vice-President	Judge of the High Court	Judge of the High Court

Representation:

Mr I.G. Cross, Q.C. and Mr Cheung Wai Sun, S.C.C. for Crown/Respondent.

Mr Michael Lunn, Q.C. leading Mr Gary Kwan, instructed by Director of Legal Aid for the Applicant.

THE QUEEN v. WONG CHI PAN AND ANOTHER

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