R. v. TO SHING CHUEN

IN THE COURT OF APPEAL

1996, No. 20
(Criminal)

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J U D G M E N T

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

1. The applicant seeks leave to appeal against his sentence out of time. He was aged 31 when convicted of one charge of attempted robbery. He pleaded guilty in the Magistrates Court and was committed to the High Court for sentence. He was dealt with by Seagroatt J on 7 November 1995 and was sentenced to 8 years' imprisonment.

2. The admitted facts are these. On 27 June 1995 at about 4.20pm the applicant entered the Yien Yieh Commercial Bank at Tai Wai, Shatin. After waiting a while he grabbed a female receptionist by the neck, poured an inflammable liquid - a thinner - onto her head. Holding a lighter in his other hand he forced her to a counter and shouted "Give me money. It's a robbery."

3. Police were alerted. The applicant took the woman hostage outside and eventually he was subdued by the police after a struggle. Upon his arrest the police found a bag carried by the applicant in which was a fruit knife and another bottle of thinner. The applicant had a pair of gloves and a paper cutter in his trousers pockets. When questioned by the police he said he had taken the risk of robbing the bank because he had no way of repaying loan sharks; he had lost a lot of money gambling in Macau and his wife was pregnant. In fact, two days before the offence, he had written a letter to the police complaining of intimidation by loan sharks.

4. In sentencing the applicant the judge took as his starting point 10 years and giving credit for his early plea sentenced him to 8 years' imprisonment.

5. The time for appealing expired on 5 December 1995. The applicant in his affirmation supporting the application for extension of time gave plausible reasons for the delay in making his application.

6. The judge quite rightly took the view that the attempted robbery was planned.

7. Counsel for the applicant complains in this court that the judge's categorisation of the applicant "as a dangerous man" is an exaggeration. If one confined that remark to the circumstances of the crime, that categorisation would appear to be correct. Unquestionably, he had put the victim to considerable danger.

8. On the other hand, the circumstances of the robbery were bizarre. How he thought he might have succeeded in robbing the bank in those circumstances defies imagination.

9. The point that troubles us is this. The applicant did show remorse and he pleaded guilty to the offence at the first available opportunity in the Magistrates Court. It is the policy of the courts to encourage early pleas of guilt. When this happens, it is normal for the sentencing judge to give a discount of about 1/3. Is there any reason why, in the circumstances of this case, that policy should not have been applied? The starting point of 10 years, though high, cannot be criticised, but giving credit for his early plea the sentence should have been 7 years' imprisonment.

10. In these circumstances we accede to the application, set aside the sentence of imprisonment imposed by the judge and substitute a sentence of 7 years' imprisonment.