THE QUEEN v. YAU KOON-YAU

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DECISION

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Roberts, C. J.:

1. This is an application by the Attorney General for a review of the sentences imposed on the respondent, YAU Koon-yau, who was convicted of theft and of escape from lawful custody after pleading guilty and of robbery after pleading not guilty.  He was sentenced to two years' imprisonment for the theft, five years' for the robbery and one year for the escape, a11 the sentences to run concurrently.

2. The respondent was arrested by the police on 17th February, on suspicion of blackmail. He was taken to Shatin Police Station and put inside the duty room, where he was guarded by two police constables.

3. Inside this room were other police officers, including a police constable who was carrying a police revolver, loaded with six rounds of ammunition, in a holster tucked into the right side of his waistband. The respondent moved swiftly towards the police constable, snatched the revolver and holster from him, pointed it at the persons inside the room, shouting "Keep still" and ran out of the report room. He was chased by police officers but managed to get away.

4. The following morning at about 7.30, a taxi driver, Mr. LAM Hon-biu, was driving his taxi in the Shamshuipo area, when the respondent hailed him and asked him to drive to the rear of the Garden Restaurant in Tai Po Road. When they got there, the defendant asked Mr. Lam for $200. Lam turned his head to look at him and saw the respondent pointing a gun at him with his right hand. Lam Who, not surprisingly, said he was frightened, replied that he only had $10 as he had just come on duty. He handed the $10 over to the defendant who said it wasn't enough; so Lam gave him another $7 in coins from his money box.

5. Two days' later, the respondent entered the Tai Po Police Station and put the revolver which he had stolen on the officer's desk saying "I've come to surrender. The pistol was taken by me in Shatin." The revolver was still loaded with six - rounds of ammunition, as it had been when it had been stolen by the respondent.

6. The Crown does not argue that the sentence, on the first charge, taken by itself, is so manifestly inadequate that it should be increased. However, we would like to make it clear that a sentence of two years' imprisonment for the theft of a police revolver is far below that which ordinarily should be imposed for such offence. As other cases have established mare possession of a firearm usually carries a sentence of about five years' imprisonment. The theft of a police revolver and, of course, the taking of possession of that revolver necessarily is part of that offence, should attract a somewhat higher: sentence than the five years which would be imposed for ordinary possession.

7. The judge,  in imposing a sentence of two years only for the theft, gave very heavy weight to the fact that the respondent had of his own will returned the revolver to a police station three days after stealing it. We see nothing wrong in a person who is guilty of the theft of a police revolver obtaining a very substantial discount below the normal sentence if he does return it to police custody of his own accord.

8. The sentence of one year's imprisonment imposed for escape from lawful custody seems to us to be a reasonable one. As it was part of the same incident in which the revolver was stolen, it was properly made to run concurrently with the sentence on the first charge.

9. A sentence of five years' imprisonment imposed after a trial is well below the normal sentence for robbery by a man armed with a revolver. In Ng Wai-ming and Others v. R. ⁽¹⁾ it was said -

"We consider eight years to be too low where firearms are used. Had there been shots fired ...... we would not have come to the conclusion that fifteen years was excessive."

10. In the more recent case of R. v. Chau Hing Chung ⁽²⁾, Barker, J.A., referring to Ng Wai-ming⁽¹⁾, commented -

"The time has come, in our view, to say that, whether or not those sentences were correct in 1980, and this Court has no reason to suppose that they were not, they are not apposite in the climate of 1984. This Court must take every opportunity in its power to deter people not only from robbing but from robbing with the use of firearms. It is right in this case, as Mr. Hingorani has submitted to us, that although firearms were used in the sense of being used to threaten, they were not actually fired. Nevertheless, in our view, whatever may have been appropriate in 1980, people who use guns for the purpose of robbery in 1984 can expect heavier sentences."

11. On the authority of Ng Wai-ming⁽¹⁾ and Chau Hing Chung⁽²⁾, that the normal scale of sentence for any form of robbery, where firearms are used, not of course where they are fired, would be in the region of ten years.

12. It is necessary for us from time to time to reassure judges and magistrates that when tariffs are issued by this court, they are intended to be guidelines and not straitjackets. There must always be room for a judge or magistrate to exercise mercy and to impose sentences well below the normal range if the circumstances of the case, in his view, justify such a course. So long as he makes it clear that he realizes what the correct scale of sentences is, and states why he has decided to impose a lesser sentence than is usual.

13. Here, the judge did recognize that the normal scale of sentences for armed robbery was substantially above that which he imposed. It is not necessary for us to go into detail as to the reasons why the judge thought that a sentence far below the normal could properly be imposed for this robbery. Suffice it to say that there were reasons, that he was exercising a discretion and that he realized that the sentence was an abnormal one.

14. We do not therefore feel disposed to interfere with any of these sentences, though they were unusually lenient.

15. The other matter which gave us some concern was whether or not the sentences on the first and third charges, which were part of the same incident on 17th February, should run consecutively to the sentence imposed on the robbery charge, since the only link between that and the other offences was that the stolen revolver was used to commit the robbery.

16. The judge does not give any reasons as to why he made the sentences run concurrently as opposed to consecutively.

17. We can only surmise that he must have taken the view that the three offences were in a sense part of one unfortunate and unpremeditated transaction and that an overall sentence of five years' imprisonment was proper, taking into account the whole history of the conduct of the respondent during the three days in question.

18. We do not think that the total sentence which the respondent has to serve is so manifestly inadequate that we should interfere with it and, consequently, the application by the Crown for a review of these sentences is refused.