R. v. YEE KWAI FOOK and Others

Criminal Appeal
No. 552 of 1994

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H E A D N O T E

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Sentence - conspiracy to rob - starting point of 18 years upheld.

Following R v Chan King-hei, 1994 No. 358, unreported and Attorney General v Jim Chong-shing [1990] 1 HKLR 131, the Court noted that sentences in other cases, not being guideline or tariff cases, are of limited value in establishing that a sentence is wrong in principle or manifestly excessive.

IN THE COURT OF APPEAL

1994, No. 552
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. :

1. Following the conviction of the four applicants for conspiracy to rob contrary to s.10 of the Theft Ordinance, they were on 21st October 1994 sentenced by Stuart Moore J to the following terms of imprisonment:

(a) 1st applicant (1st defendant) 10 years     imprisonment;

(b) 2nd applicant (3rd defendant) 10 years     imprisonment;

(c) 3rd applicant (5th defendant) 12 years     imprisonment;

(d) 4th applicant (7th defendant) 16 years     imprisonment.

They now apply for leave to appeal.

2. Mr John Mullick, who appeared for the first three applicants, in the event concentrated his submissions upon only one point, i.e. the starting point of 18 years adopted by the judge which clearly is the crucial matter in this appeal. He submitted that it was much too high and resulted in sentences that were manifestly excessive or wrong in principle. As the starting point in such offences was at that time under consideration by another division of this Court, we deferred our judgment.

3. Reverting to Mr Mullick's submission, he relied upon the following four decisions of this Court.

4. In R v Eduardo Concha & ors 1985 No. 343, the offence was similarly conspiracy to rob. There were seven persons involved, aged 34 to 44 years, with three loaded firearms between them. They were sentenced to terms of imprisonment of 10 years for the conspiracy and terms of 8 years and 7 years imprisonment on a charge of possession of arms and ammunition. This Court did not interfere with the sentences of 10 years, stating that in their view the sentences were proper. The sentences of possession were reduced; these, however, were concurrent.

5. In R v Li Yuet-keung, 1989 No. 365, the applicant pleaded guilty to one count of robbery and one count of possession of firearms. He had lured a decorator to a flat and with a confederate threatened him with a gun, took his valuables and then tied, gagged, blindfolded and pushed him into a kitchen. Because of his ready plea of guilty, the court considered the sentence manifestly excessive and effectively reduced it from 12 to 10 years.

6. In R v Yu Wai-lam and another, 1991 No. 56, there were two separate charges of robbery, one of a jewellery and watch company and the other of an electric company. Two persons were involved in one offence and entered brandishing pistols; and in the other, four men armed with three pistols and a Gurkha knife. The court was of the opinion that the starting point of 20 years adopted was too severe. It added:

"A starting point in respect of each of the applicants of 15 years will not however be wrong."

7. In R v Au Yeung Siu-wai and another, 1992 No. 475, up to four males armed with a pistol robbed massage parlours. In refusing applications for leave to appeal against sentence, the court said this:

"In passing sentence the judge properly observed that the starting point for sentence in a robbery involving the display of a firearm was in the range of 12 to 15 years' imprisonment."

Mr McNamara, for the 4th applicant, adopted Mr Mullick's submissions.

8. Turning then to the appeal in which judgment had been reserved by another division, and which prompted us to reserve judgment, i.e. R v Chan King-hei and ors, 1994, No. 358, judgment was delivered on 29th May. In respect of sentence the court there was referred to a number of lower sentences in other cases. It also considered R v Au Yeung Siu-wai and went on to say this:

"Perhaps this sufficiently demonstrates that it is unhelpful to cite a catalogue of unreported cases in an application on sentence which are neither guideline cases nor cases which decide any point of either law or principle. They are examples only of the very wide discretion which judges exercise on the varying facts and seriousness of cases of robbery and conspiracy to rob with firearms. It is a judge's duty in each case to take into account the full circumstances of both offence and offender. Having done so, the results vary widely. It is also apt to say that over recent years, because of the escalating use of firearms and the tendency to recruit from the Mainland, sentences for this type of offence have been gradually increased by judges in order to deter."

9. We agree. While a judge in assessing a sentence may be assisted by knowledge of other sentences for the same type of offence, the latter (in contrast to guidelines and tariffs set by this Court) are of limited value in establishing that a sentence is wrong in principle or manifestly excessive. Thus, although there dealing with an application by the Attorney General for review of sentence and with the role of prosecuting counsel in the sentencing process, this Court in Attorney General v Jim Chong-shing [1990] 1 HKLR 131 at p.152 stated with reference to decisions being brought to the attention of the trial judge or magistrate that prosecuting counsel "should select only cases which are 'tariff' or 'guideline' cases (by which we mean to include cases which lay down relevant sentencing principles) but not decisions which merely uphold, reduce, or increase a particular sentence".

10. We are unable to detect any principle or guideline in the cases cited by Mr Mullick and do not find them of assistance. If anything, they indicate the very wide range of relevant circumstances and consequently of sentences that arise or are appropriate in robbery cases.

11. In R v Chan King-hei, we would add, five persons were recruited and smuggled into Hong Kong by others in Hong Kong. They brought with them a firearm and a grenade. Lorries, a car, the firearm and the grenade, gloves and crowbars and a hotel room were obtained in preparation. The sentences for conspiracy to rob ranged from 10 to 16 years, to which in each case two years of sentences for possession of the firearm were made consecutive. On the appeal this Court held that the sentences were neither manifestly excessive nor wrong in principle and refused leave.

12. The facts before us, coincidentally, are similar in some respects. At least seven persons were involved. A firearm and ammunition were procured and clearly would have been used had the police not arrested the applicants and their accomplices. The offence was to be carried out in the Central District of Hong Kong in circumstances in which the risk of serious injury or death to the public was very high. The arrangements were carefully organised. Two reconnaissance trips to the jewellery store, transport arrangements, including vehicles for the purpose of getting away and the use of a hotel room were made. The judge was entitled to take a serious view of the offence. We can find no error of principle on his part nor, in our view, can the sentences be said to be manifestly excessive. We refuse leave to appeal.