R. v. YU WING WAH

IN THE COURT OF APPEAL

1995, No.745
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced one count of false imprisonment and one count of robbery. The false imprisonment count alleged that he, together with one other names person and with persons who were not in custody, unlawfully and injuriously on 13th February 1995, outside Wilson Carpark at Fung Mat Road, Western, imprisoned Lee Yan and detained him against his will. The robbery count was particularized that the same persons had on the same day and at the same time robbed Lee Yan of $200,000 in cash, a further $1,353 in cash, a small number of Renminbi, a Hong Kong identity card, a Hang Seng Bank Visa card, an American Express card and a winning betting ticket of the Royal Hong Kong Jockey Club and two bunches of seventeen keys.

2. The facts were that on the evening of 13th February, 1995, the victim Lee Yan was walking home from work. When he had almost arrived at his home he was grabbed by a number of men, one of whom was holding a knife, and was forced against his will to the compartment of a goods vehicle. The applicant was waiting inside the rear compartment and helped to pull the victim in. The applicant then guarded him. When the victim called for help he was subdued by the applicant and bound hand and foot. The vehicle was then driven away and after about five minutes it stopped. Two of the men had been among the original party, then entered the rear compartment and robbed the victim in the presence of the applicant. They then left and the applicant continued to guard the victim for about 20 minutes. The applicant then alighted leaving the victim tied up but was almost immediately arrested.

3. The $200,000 that was stolen was the property of the victim's employer. The $1,353 was his own property as were the Renminbi. Also taken was his identity card, his Visa card, his American Express card and a $1,000 winning betting ticket of the Royal Hong Kong Jockey Club. Also taken were two bundles of keys which belonged to the victim and his employer.

4. It was admitted that the applicant had been enlisted by others to take part in the robbery and was to receive $18,000 for his assistance.

5. When sentencing, Wong J. said:

"I have considered the mitigation that has been put before me by Mr. Chan, your counsel, and I took all this into account in assessing and passing sentence in this case, but it must always be remembered that a robbery and false imprisonment carried out with force are always serious offences and invariably the courts must impose heavy sentences.

Now, in this case, not only that the victim was robbed of a substantial amount of money, he was subjected to fear and violence and he was quite unnecessarily detained in a vehicle for some 20 minutes; and if he had not been spotted or discovered and a report was made to the police, then he could have been there for a very much longer time. Apart from his financial loss, his physical suffering and he also suffered immensely mentally. How, these are aggravating factors which must be taken into account.

Now, having considered the facts of this case, your background and your plea of guilty - which really represents the most important factor of all for a reduction of sentence - in passing sentence I have to take into account the totality principle to achieve an adequate and appropriate sentence.

Putting these two offences together, I consider a sentence in the range of ten-and-a-half years appropriate. I will allow you a discount for your plea of guilty.

Now the sentence on the 1st count, which should have been three years, is reduced to two years; and the sentence on the 2nd count, which should have been seven-and-a-half years, is reduced to five years. Now this sentence is reduced to a total of seven years' imprisonment instead of ten-and-a-half years. The two sentences of two years' imprisonment and five years' imprisonment are to be served consecutively. That means a total sentence of seven years' imprisonment."

6. The real question for this court to decide is whether ten and a half years as an overall sentence was the proper assessment in the circumstances. Mr. Chan, who appears for the applicant today, as he did below, has no real quarrel with the sentence of seven and a half years which was arrived at by the judge in relation to the robbery count. He furthermore has no real quarrel, with the three years that was arrived at in relation to the false imprisonment count had that stood as a separate offence. He says, however, that the aggravating factors which constituted the false imprisonment account were already taken into account when assessing the seven and a half years imposed on the robbery count. He submits that that sentence must, following Mo Kwong Sang, have taken into account the fact that a weapon was used, that it was a robbery in company, that violence was exhibited towards the victim and that he was tied up. We accept that there is, to an extent, an overlapping as regards the aggravating features in each offence. However, there was no overlapping as regards the real gravamen of the false imprisonment count, i.e. the rendering immobile and the removing of the victim from the scene and the leaving of him in that condition until he was released by the police. These serious features of that offence play no part in an ordinary robbery and are not ones to which the Mo Kwong-sang guidelines have application. We are satisfied that the overall starting point of ten and a half years arrived at the by the trial judge, while at the top end of the range of appropriate sentence, was nonetheless within that range and that we cannot, therefore, properly interfere with the final sentence of seven years which he imposed having taken into account the plea of guilty.

7. The application must, therefore, be refused.