R. v. LEE KIN CHUEN and Another

IN THE COURT OF APPEAL

1994, No.269
(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 applicants faced one charge of robbery and one charge of possession of an imitation firearm at the time of committing a robbery. The matter proceeded upon the basis that it was an imitation firearm. The first applicant LEE Kin-chuen pleaded not guilty to both charges and was upon conviction after trial sentenced to 11 years on the first and six years on the second. The second applicant Chan Pui-lam pleaded guilty to both charges and was sentenced to nine years on the first charge and to five years on the second. In the case of each applicant the sentences were ordered to be concurrent. The second applicant had a previous conviction for robbery which, judging from the sentence, must have been an offence of some gravity. Both the applicants now appeal against those sentences.

2. The facts indicate robberies of a kind which we see all too often before this court.

3. At about 7:15p.m. on 31st May 1993, the second applicant and the 1st applicant entered the Kam Che Money Lending Company at Room 211, Bowring Commercial Centre, Woosung Street in Yaumatei. The 2nd applicant held and imitation hand gun. He pulled the cocking handle of the gun with the obvious intention of intimidating the persons who were then in the premises. The 1st applicant held a fruit knife and shouted "It's a robbery" A Mr. Kwok Kwan-lam was looking after the shop. With him was his brother Kwok Ping-chung and another person Cheung Wing-ho. Also present on the premises was a daughter aged 10. The victims were told to squat down and their hands were tied behind their backs with iron wire and they were assaulted with the handle of the knife. There was no doubt on the facts that it was intended to intimidate the victims by menacing them with a knife and a gun and by assaulting them. It must be said that the child was not tied up or maltreated. An I/D card, cash and valuables were taken. It seems the overall value of the articles was more than $38,000 but a very substantial amount of this was eventually recovered.

4. Shortly after the robbers left the shop the victims managed to free themselves, shouted robbery and chased after the robbers. The 2nd applicant was caught but the 1st applicant made good his escape. He was arrested some days afterwards and under caution admitted the offence.

5. When this matter first came on for hearing Mr. Moorfoot, who when appeared for the Crown, suggested that this court might find this an appropriate case in which to reconsider the guidelines in Mo Kwong-sang. Because of that the 1st applicant was given legal aid and the 2nd applicant was given leave to appeal against his sentence out of time and was also given legal aid. In the outcome that suggestion has not been pursued and we deal today simply with applications for leave to appeal against sentence.

6. The trial judge took a starting point of 12 years for the robbery charge and seven years for possession of imitation firearm charge. When so doing he took into account that it was a robbery in the premises of a money-lending company in which an imitation pistol and a knife were used, that the victims were menaced and tied up and that the premises were ransacked. It is suggested by Mr. Poll, who appears for the applicants, that the trial judge failed to take into account that the robbers had been considerate towards the child insofar as they had not subjected her to any threats and had not tied her up. This is not so. The judge noted that the child was not tied up but was mindful that she had witnessed the robbers' violent conduct. It was also suggested that the trial judge may have erred in not giving weight to the suggestion in mitigation that the applicants had some kind of justifiable grievance against the victim company. Whether or not the judge overlooked that matter it was not worthy of any weight as a mitigating factor.

7. Mr. Poll submitted that Mo Kwong-sang, leaving aside the added factor of possession of the imitation firearm, threw up a sentence of about eight years. He submits that adding four years to that because of the possession of an imitation firearm was too severe.

8. Mr. Saw, who appears for the Crown, submits that the tariff in Mo Kwong-sang at 8 years is no more than a starting point for the court to use when assessing the gravity of the offence and the length of the sentence. He submits that the judge was, if anything, lenient when he took a starting point of 12 years. He points to the dangers inherent in the use even of imitation firearms and reminds us of the comments made by this court therein.

9. We are satisfied that, although the trial judge took a starting point which was at the top of the range, he did not go beyond that range and that there is, therefore, nothing which would require us to interfere with the sentences which he imposed.

10. Both of the applications for leave to appeal against sentence are therefore refused.