R. v. AU CHEUNG-CHAN

IN THE COURT OF APPEAL

1992 No. 192
(Criminal)

HEADNOTE

Armed robbery by a group of males of a hi-fi shop in mid-afternoon. Knife used, victims assaulted, bound and gagged. Ten years was a proper starting point. Two years discount for a plea of guilty was sufficient. Only extreme youth, not here the case, would warrant discount for age. In such robberies it is proper to apportion blame equally although only one carries the knife and not all participate in the assaults. Discount should be given for willingness to give evidence against another defendant which in the end was not necessary because that defendant pleaded guilty. One year appropriate.

IN THE COURT OF APPEAL

1992 No. 192
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced one count of robbery which was particularized in the following way: that he and David Chan and Lau Kwan-leung had , on 15th January 1991, at the Universal Laser Hi-fi Supplier Company, situated at Shop No. 3, Mezzanine Floor, Kam Wing Mansion, Shui Chee Koon Street, Yuen Long, New Territories, together with other persons, robbed Chan Suk-kwan of cash $5,000 and 191 laser discs valued at about $67,280 and Leung Yiu-chung of cash $1,000, one Rolex watch, one brown wallet and one Hong Kong identity card in his name. The applicant pleaded guilty when he first appeared before a judge and was remanded for sentence before Gall J. who imposed a sentence of imprisonment for 8 years upon him.

3. The facts were that at about 3 o'clock in the afternoon of 15th January 1991, Miss Chan Shuk-kwan was working in the Universal Laser Hi-fi Suppliers Company. There were at that time two other people in the shop, one was a male customer Mr. Leung and the other was the 10-year-old daughter of the shop's proprietor. A group of Chinese males, which included two of the defendants, one being the applicant and one being the 1st defendant, came into the shop and started to look at the equipment. Shortly thereafter one of the men produced a knife, pointed it at Miss Chan's neck, dragged her into the toilet and hit her on the head with a metal object until she became unconscious. Mr. Leung was also rendered unconscious by blows on the head by a member of the group as he sat reading a magazine. The child, having seen what was going on, was gagged and hit on the head and she fell to the floor. When Mr. Leung regained consciousness he discovered that his wallet, his identity card, $1,000 cash and his watch had been taken. A check of the shop disclosed that 191 laser discs and $5,000 cash had been taken from the property of the shop. Also found on the premises were two large red, white and blue nylon bags, a water pipe and a roll of adhesive tape. These had, it seems clear, been left at the premises by the robbers. The three victims were taken to hospital and treated for bruising and/or hematoma and discharged.

4. The 1st defendant was arrested later on that day and the applicant was arrested on the following day at his home. He made a number of admissions under caution in which he made clear his complicity in the offence.

5. The trial judge, having heard mitigation which stressed the youth of the applicant and the remorse which he felt and his shocked reaction to what had occurred, made the following observations when dealing with the applicant and the 3rd defendant:

"Each of you have entered pleas of guilty and for that reason you will obtain substantial discounts from the sentence you otherwise might have received.

The previous conviction of the 1st accused is of no importance.

The eight previous convictions of the 2nd accused, whilst not in any way increasing the sentence to be passed upon him, are a factor to be taken into account when I decide whether or not I ought to imprison you, or whether you ought to have the benefit of rehabilitation in Training Centre.

The 3rd accused has no criminal record in Hong Kong, and I am told has no criminal record at all. As to that in Hong Kong, he has only been here since September 1990 ..."

"The only other matter of mitigation is that of the 2nd accused and his age. Usually, when a person is of the age of the 2nd accused I take the view that rehabilitation is more important than a prison sentence. However, in this case, given his previous record and given the nature of the robbery with which he joined, I do not consider rehabilitation to be appropriate.

Having considered all that has been said on behalf of each accused, and taking into account those matters of mitigation that I have referred to, the 1st accused is sentenced to eight years' imprisonment.

2nd accused is sentenced to eight years' imprisonment.

3rd accused, to reflect the difference in his participation in the robbery, is sentenced to six years' imprisonment."

6. The trial judge did not see fit to indicate the starting point which he adopted when sentencing the three accused. This court has said, and we repeat, that a trial judge should give such an indication as it greatly assists the Court of Appeal when considering applications against sentence. We are satisfied that a proper starting point would have been, and it seems that it very probably was the one adopted by the trial judge, imprisonment for ten years.

7. Mr. Percy who appears for the applicant today has argued two grounds. He firstly suggested that while the judge correctly identified the two mitigating factors, i.e. the plea of guilty and the age of the applicant, he failed to give proper weight to those two factors. We are unable to agree. The judge clearly had the plea of guilty fully in mind and, given a starting point of ten years which we consider would have been a proper one, the discount of two years for the plea would have been sufficient. We find nothing in the suggestion that some special consideration should have been given to the age of the applicant. As we have said in the past, only where the applicant is of extreme youth will a discount for age be given in armed robberies of this kind.

8. Mr. Percy next argued that the judge failed to apportion the blame between the applicants in a proper manner. As to this submission, we can only observe that in circumstances such as this, the participants must bear equal responsibility for what was done. The possibility of a degree of violence being used when robberies of this nature are embarked upon must be taken to be in the minds of each of the participants.

9. The final factor was not a specific ground but it was argued by Mr. Percy that the judge had failed to take into account the offer which the applicant had made to give evidence. It was confirmed by Mr. Saw that he had offered to do so and that he was to be called at the trial of the 3rd accused had that accused not pleaded guilty. Although it was urged by counsel, Mr. Egan, who then appeared for him, that he had been cooperative, it does not seem that the trial judge gave any weight to the fact that he had offered to give evidence, and would have done so had there not been a plea. We are satisfied that this was a matter of considerable importance which the trial judge should have taken into account and which should have been regarded as a mitigating factor. We consider that the proper further discount to have been given would have been one year. That being so, we allow the application, treat the hearing of the application as the hearing of the appeal and order that the sentence of imprisonment for 8 years be varied to one of 7 years.