New South Wales Supreme Court CITATION : Regina v Lo, Regina v Chan [2003] NSWSC 1255 HEARING DATE(S) : 21/7/03, 18/8/03, 27/10/03, 5/12/03, 19/12/03 JUDGMENT DATE : 19 December 2003 JURISDICTION: Common Law JUDGMENT OF : Adams J at 1 DECISION : Lo: Sentenced to twelve months' imprisonment to commence on 18 December 2003. The whole of the sentence is suspended and the offender is released from custody on condition that he enter into a good behaviour bond for a term of twelve months; Chan: To enter into a bond to be of good behaviour for the term of twelve months and is to pay a fine of $1500. The fine to be paid within 7 days of 19 December 2003. CATCHWORDS : CRIMINAL LAW - Sentence CASES CITED : The Queen v Thomson and Houlton [2000] NSWCCA 309 Regina PARTIES : Wai Man Lo Ka Kan Chan FILE NUMBER(S) : SC 70216/02; 70044/02 Mr P E Barrett (Crown) COUNSEL : Mr A Hallas (Lo) Ms M A Marty (Chan) SOLICITORS : S E O'Connor (Crown) Mr P Moloney (Chan) Ex tempore - Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J FRIDAY 19 DECEMBER 2003 70216/02 - REGINA v WAI MAN LO 70044/02 - REGINA v KA KAN CHAN SENTENCE 1 HIS HONOUR: On 22 May 2001 Wai Kit (usually known as Ricky) Lo and David Ng entered the office area of Market City Tavern where they knew Mr Nigel Stiffe, the Tavern's manager, counted the Tavern's cash takings. They were armed with a pole from a dismantled shopping trolley, a knife and a gun. In the course of the armed robbery that then ensued Mr Stiffe was murdered. Ricky Lo and David Ng have been given heavy sentences in respect of these offences. 2 The police investigation following the murder soon identified Ricky Lo as a suspect and he was placed under surveillance. 3 Ricky Lo is the offender, Wai Man Lo's, younger brother. In late June 2001 police went to Ricky Lo's home several times in an attempt to locate him. They were told by both the offender and his mother that they did not know where Ricky was and they had not seen him for some time. This was not true. On 28 June 2001 the offender was in the company of Ricky Lo, their mother and Simon Chan at a restaurant. He, Chan and Ricky then went to a travel agency where Chan brought airline tickets for Ricky. On 3 July, the next day, Ricky Lo was arrested at Sydney International Airport with airline tickets to Manila. He was interviewed by police and admitted his involvement in the armed robbery and murder of Mr Stiffe. 4 About ten hours after Ricky Lo's arrest, the police arrested the offender, Wai Man Lo. He told police, in substance, that he suspected his brother was involved in the robbery and murder because he knew he had previously worked at the Tavern and was desperate for money. His suspicions then increased when Ricky told him he had done something bad and asked him for help. Ricky then disappeared for a few days and called the offender from Queensland to let him know he was all right. Shortly after he returned from Queensland he again told the offender that he had done something bad and asked for his help, though he denied that he had been involved in the Market City Tavern robbery. Later, he told the offender that there was a knife under his bed and asked him to get rid of it and later that day the offender retrieved the knife, put it in a plastic bag and threw it in a garbage bin in Canada Bay. He said that he did so because he did not want his brother to be involved in any more trouble and did not know, though, that it had been used in the robbery. His suspicions were allayed to some degree because his brother requested money, but they were confirmed on 28 June 2001 when the offender recognised his brother from a photograph taken from a CCTV camera at the Tavern, which was published in a newspaper article about the robbery. He contacted Ricky, who then admitted that he had taken part in the robbery. The offender admitted that he had given his brother $500 towards his overseas travel to the Philippines. 5 The offender pleaded guilty on 5 November 2003 to the crime of assisting Wai Kit Lo knowing that he had committed a robbery with on offensive weapon. This crime carries a maximum term of imprisonment of fourteen years. The Crown does not allege that the offender knew that his brother had murdered Mr Stiffe, although it is obvious that he must have known Mr Stiffe was killed in the course of the robbery. It is important to note, however, that it is not alleged the offender was ever aware of his brother's plan to rob the Tavern or that he got any of the proceeds or was rewarded in anyway for helping his brother. Accordingly, it is appropriate to approach the offender's culpability upon the basis that he acted out of a sense of family loyalty and had nothing whatever to gain from what he did. 6 The offender was born on 25 February 1975 and, accordingly, was twenty-six years old as at the date of the offence. He was born in Hong Kong and came to Australia with his family when he was one year old. His older brother was convicted of murder several years ago. The next oldest, the offender, took the role of the head of the family, his father having left some years before. I do not doubt that, in part, his role impelled him to assist Ricky, whose plea for help he found himself, as his older brother, unable to resist. 7 The offender has no previous offences and has been in consistent full-time employment since leaving school with his higher school certificate. He has been with his current employer for something over two years and he is highly thought of. 8 I accept that the offender is genuinely sorry for his offence and he has manifested this contrition by his plea of guilty. The Crown accepts that this was done at the earliest practical opportunity and, accordingly, he is entitled to the twenty-five per cent discount referred to in The Queen v Thomson and Houlton [2000] NSWCCA 309. 9 It was also relevant to note that, although the police were aware that the offender was keeping company with his brother, they would not have known, had he not told them, that he had disposed of the knife and given Ricky $500 to help him escape. Indeed, without his admissions to police it was very unlikely that any prosecution of the offender for the present offence could have succeeded. 10 The offender was placed in custody for five days after his arrest before he obtained bail and since then his freedom has been significantly affected by the conditions of his bail, which required him to report to police, at first daily and thereafter with somewhat less frequency. 11 I am satisfied that the offender's involvement in the present offence was an aberration in an otherwise law abiding and respectable life. There is significant evidence that supports this conclusion which it is unnecessary to detail and in respect of which a substantial allowance must be made. 12 The stress for his mother and the shame for the family, with having another brother in gaol together with his adoption of the role of head of the family, regrettably led the offender to agree to help his brother in his attempts to escape justice. I do not doubt that anyone in the offender's position would feel pulled in two directions when faced with the appalling dilemma of denying a younger brother help when he was faced with a lengthy prison term or breaking the law to help him escape. However, of course, the public interest requires citizens to turn their backs even on members of their own family when to help them means that they might avoid the law. 13 At the same time, justice requires fair acknowledgment of the moral dilemma faced by this offender who was otherwise completely innocent of wrongdoing, was not motivated by any desire for gain and whose life was a decent and honourable one. 14 The Crown prosecutor has conceded that the court would not fall into an appealable error if a term of full-time imprisonment was not imposed. 15 Taking into account all these matters the Court imposes a sentence of twelve months imprisonment to commence on 18 December 2003. I order that the whole of the sentence be suspended and the offender be released from custody on condition that he enter into a good behaviour bond for a term of twelve months. 16 The offender Ka Kan Chan is a close family friend of the Lo's, having gone to school with two of the boys. He was staying with them in May 2001. He was then thirty-one years of age. Whilst with the family he became aware that Ricky Lo was involved in the robbery at the Market City Tavern. He is charged with, and has pleaded guilty to, failing to report that knowledge to police. That crime carries a maximum term of imprisonment in the present circumstances of two years. 17 It is obvious that the offence may be committed in a wide range of circumstances. In my view the culpability of this offender is distinctly at the lower end of the scale and it was actuated by his feelings of loyalty, not so much towards Ricky Lo, but to the family that had taken him in and given him considerable support over the years. 18 The offender, however, kept company with Ricky whilst he was avoiding police and was present when he applied for a passport and bought his ticket for Manila. Most significantly, however, on the night before the anticipated departure he suggested to Ricky that he should give himself up to police, a conversation recorded by electronic surveillance. 19 The offender appears otherwise to have been of good character. He has been hard working and has a family of his own. He spent some five days in custody until he was released on bail, the conditions of which required frequent reporting to police. To a person of otherwise good character an obligation of this kind is a significant intrusion into their freedom and a reminder of the culpability of the criminal behaviour with which they have been charged. 20 Numerous members of the community have provided references commending the offender's honesty, trustworthiness and good character. I consider that his offence should be regarded as a momentary lapse rather than an act of significant criminal culpability. I am satisfied that the offender is contrite. He also pleaded guilty at the earliest practicable opportunity and in sentence would be entitled to the twenty-five per cent discount to which The Queen v Thomson and Houlton adverted. 21 In the result I have decided that it is not appropriate to sentence the offender to a term of imprisonment. Accordingly, I order that he enter into a bond to be of good behaviour for the term of twelve months and that he pay a fine of $1,500. The fine is to be paid within seven days of today. ********** Last Modified: 02/02/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.