THE QUEEN v. CHAN YAN TO

IN THE COURT OF APPEAL

1988, No. 329

(Criminal)

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J U D G M E N T

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

1. Chan Yan To was convicted of robbery after a trial in the District Court by Judge Leonard on 31st December 1987 and sentenced to 5 years' imprisonment. He first applied for leave to appeal against his conviction only. That application was dismissed on 22nd Jane 1988 by this Court differently constituted (R. v. Chau Yan To and Li Kwok Keung, Criminal Appeal No. 32 of 1982, unreported.) He was granted leave to appeal against his sentence out of time by a single judge of this Court.

2. The robbery of which the Appellant was convicted took place in the early hours of 12th August 1987 at a construction site in Sha Tin. The facts are fully set out in the judgment in Criminal Appeal No. 32 of 1988 and we do not think it is necessary to state them again, save to say that the culprits got away in a van with a great quantity of taps and locks, valued at $178,000, which were to be used in the building being constructed. All the stolen items were recovered on the next day from the man to whom they had been sold for $28,000.

3. The Appellant, who is aged 22, has been in trouble before. In 1982 he was given a three months' suspended sentence for burglary, and in 1985 he was fined $300 for giving false information to a pawnbroker.

4. In his Reasons for Sentence, the judge emphasised that while it had not been an armed robbery, it was one which had been carefully planned and skilfully carried out by a gang of four men; two elderly watchmen had been roughly handled and Ragged, and one of there had been made dizzy by a blow to his head. The Judge also mentioned the value of the goods stolen.

5. In explaining why he had imposed the lesser sentence of 4½ years' imprisonment on Li Kwok Keung (one of the Appellant's co-defendants) the Judge said that he had been given credit for his clear record.

6. In Criminal Appeal No. 32 of 1988 the Court reduced Li Kwok Keung's sentence to one of 3½ years' imprisonment and, in delivering the judgment, there are the reasons Penlington, J.A. gave (at pages 12 and 13):

"    We have taken into account the factors which have been so eloquently argued before us by his [Li Kwok Keung] counsel. These are substantially that he not only has a clear record but has built himself up from very humble beginnings to the stage where he owns his own van. There is a very favourable probation report. This does seem to be very much a 'one off' incident with no suggestion whatever that he has ever done anything before of this nature.

This was a robbery in which two watchmen were assaulted, blindfolded and held in a storeroom. Nevertheless no weapons were used which is clearly a major factor to be taken into account. There was full recovery of the property. Taking into account all those factors we feel that the sentence of 4½ years imposed was excessive and we would allow the application, treat this as the hearing of the appeal and reduce the sentence to one of 3½ years."

7. After hearing Counsel, all we need say is that we have concluded that in the light of this Court's earlier decision in relation to the Appellant's co-defendant, and since there was no evidence before the trial court to indicate that the Appellant's participation in the robbery was any more grave, a reduction in the sentence imposed upon him by the learned judge must be made.

8. However, we do not feel teat the reduction should he Precisely proportionate to the reduction ordered by the Court of Appeal in respect of Li Kwok Keung. This is because it is perfectly clear from the first paragraph of the passage from Penlington, J.A.'s judgment which has just been read, that the Court on that occasion was greatly influenced by the fact that not only had Li Kwok Keung a clear record but there was also a very favourable probation report on him hefore the Court and because he had built himself up from very humble origins to the position where he owned his own van. Factors of this kind are not present in the case of the Appellant.

9. We allow the appeal to the extent of reducing the sentence imposed by the trial judge from 5 years to 4½ years.