THE QUEEN v. YU WAI LAM AND ANOTHER

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JUDGMENT

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Hon. Yang, C. J.:

1. This is the judgment of the court.

2. The first applicant (D1) applies for leave to appeal against his sentences of 10 years' imprisonment for one count of robbery (Count l). He does not seek to appeal against his sentence of five years for possession of arms and ammunition and a sentence of 18 months for possession of imitation firearms. The sentences of five years' imprisonment and 18 months' imprisonment were ordered to run concurrenly but consecutive to the sentence for robbery.

3. He pleaded guilty to all three counts in the present case.

4. He is a man of 33 years of age and has a record for robbery for which he was sentenced to four years' imprisonment in 1982.

5. The second applicant (D2) pleaded guilty to a different count of robbery (Count 2) and was sentenced to 10 years' imprisonment.  He is 24 years of age.

6. I now come to the facts.

7. The only evidence against D1 was his confession statement made after caution. In it he admitted to taking part in the robbery with others at the Lavon Jewellery and Watch Company at Mody Road, Tsimshatsui, on the 17th December 1989. Prior to the robbery he had entered the shop posing as a customer and purchased some items worth $2,000 supplied by the mastermind of the crime, a man known as Lee Hung-kin, the brother of D2. At the time of the robbery, two intruders entered brandishing pistols and they forced the four occupants of the shop into the rear of the premises. One robber stood guard over them whilst the other prised open a display counter and a large display case. D1 was not present at the time of the actual robbery but waited at a hotel at Shatin. He was later paid $15,000 as his share. The total value of property stolen was about $2 million.

8. D2 took part with others in a robbery at the Tung Hing Electric Company, Tai Po, on the 7th January 1990. Four men burst into the company armed with three pistols and a Gurkha knife and there robbed the proprietor and customers of cash and other items with a total value of over $2.6 million.

9. It was argued on behalf of Dl before us that the starting point of 20 years' imprisonment adopted by the learned trial judge was wrong, and the 10 years imposed upon Dl was too heavy having regard to his plea of guilty, his co-operation with the police, his willingness to give evidence against his co-accused and his relatively minor role in the robbery. The Crown accented that he was not the mastermind.

10. For D2 it was also submitted that the starting point of 20 years was too high and the sentence of 10 years imposed upon him was manifestly excessive having regard to the fact that D2 was unaware that his confederates were in possession of firearms, that he played but a subordinate role, that he did not take part in the planning or organization of the robbery, and that he pleaded guilty. It was contended that the guidelines in MO Kwong-sang v. The Queen (1981) HKLR 610 should be followed. It should be noted however that the judge found - as he was entitled to - that D2 should have been aware that robbers were likely to present weapons (though not necessarily firearms) to effect the robbery.

11. Numerous authorities were cited to illustrate the range of sentences imposed on different kinds of robbery. It is not suggested that any principles of sentencing might be extracted from those decisions which might be helpful in the instant case.

12. Having considered the facts of each of the two robberies and all the mitigating factors urged on behalf of Dl and D2, we are of the opinion that the starting point of 20 years is too severe in all the circumstances. A starting point in respect of each of the applicant of 15 years will not however be wrong. The learned trial judge gave a discount of 50 per cent in favour of each of the applicant, arriving at a sentence of 10 years. In our judgment the discount was overgenerous; a discount of one-third is all that they deserve. The result is that the sentence of l0 years (being one-third of 15 years) on each applicant remains unaltered.

13. We allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal to the extent indicated.