ATTORNEY GENERAL v. MAN YUI TO

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JUDGMENT

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Cons, J.A. :

1. The defendant in the court below was convicted by a jury of robbery.  It was a robbery at a goldsmith shop in Hennessy Road.  Three men came in, one with a gun and two with melon knives.  The gun was pointed at the owner of the shop and the two with knives jumped over the counter, ordering the staff to open the showcases.  The two men then stuffed the gold ornaments into a travelling bag and all fled.  The goods they took away with them were worth about a quarter of a million dollars.

2. There was some evidence at the trial that the defendant was one of the knifemen, but it was eventually accepted by counsel for the Crown that he was in fact the driver of the get-away car and acted also as a look-out while the robbery was taking place.  He was represented by counsel at the trial, who found himself in the difficult position, after the jury's verdict, of having to concede to the judge, as he put it, that "there is little that can be said on behalf of this defendant by way of mitigation". Nevertheless, he did his best, as has Mr. Bharwaney who appears for the defendant today.

3. What was said to the judge was that the defendant was remorseful.  That is not all that easy to appreciate when we note that he persisted throughout the trial that he was in fact innocent and had for his part been extremely badly treated by the police in order to extract from him a confession.  Nevertheless, the judge did accept that he did so feel and made some allowance for it.  However that cannot have been very much, for remorse is not a factor which carries weight in crimes of this kind.  Long sentences are intended to be deterrent.

4. It was then urged that the defendant came from a poor family.  So, come to that, do many persons, who nevertheless struggle to make ends meet honestly.

5. Finally the point was raised that he was only the look-out and the get-away driver.   Yet it must be realised that without him the crime could not have been committed in the way it was. It was said, and has been stressed again today, that there was no direct evidence that he actually knew a gun and knives were to be carried.  But it seems to us that where these are openly carried, and there is nothing to suggest otherwise, the natural inference is that all involved must have known.

6. The judge also took into account that in effect the defendant is a first offender.   He has two previous convictions, but as far as this case is concerned they are not of importance.  However, a clear record is likewise of virtually no importance in this kind of case: see MO Kwong-sang v. R.⁽¹⁾ . The judge correctly disregarded the attacks made on the police during the course of the trial and then imposed a sentence of 6 years.

7. The Attorney has asked us to say that this is manifestly inadequate. We agree. The normal sentence to be expected where a person takes part in an armed robbery upon a bank or upon a jewellery or similar shop is one of twelve to fifteen years. That is apparent from the records o sentences passed in the High Court. It is a level that has been approved by many decisions in this Court. It is sufficient if we.just mention two of them. TSE Wo-ping v. R.⁽²⁾ was an attempted robbery on a watch shop. Four men went in, one with a gun and two with axes.  Two shots were actually fired into the ceiling by way of warning.  In the course of this Court's decision, it was observed "that fifteen years imprisonment is appropriate for this kind of robbery or attempted robbery". R. v. CHAN Chau-sang, LUI Chi-wai and TO Sai-so⁽³⁾ was the robbery of a jewellery shop. To be precise it was only an attempted robbery for the police  intervened in time to prevent it. There were guns and a knife.  The guns were actually used, not by way of robbery, but in a shoot out with the police. As far as the attempted robbery was concerned this Court refused to disturb the sentence of 14 years.

8. The circumstances of the present case place it at perhaps the lower end of the sentencing bracket.  We must also bear in mind that this is an application for reveiw by the Attorney General, and we are therefore bound to impose something less than was properly deserved. In all the circumstances we think the sentence now should be one of 9 years.

9. For these reasons the application is allowed and the sentence varied accordingly.