R. v. YU TAI WING

IN THE COURT OF APPEAL

1994, No. 454
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. After trial before Leonard J and a jury the applicant, who was a serving police officer of 20 years standing, was convicted of robbery and of possession of an imitation firearm at the time of committing a robbery, and was sentenced to concurrent terms of 10 and 5 years' imprisonment. His application for leave to appeal against conviction has been refused. We are now concerned with his application for leave to appeal against sentence.

2. The facts of the case were that, on 21 January 1993 immediately prior to the lunar new year, a Miss Chan had withdrawn some money from a bank in Kwai Chung and, after placing it in a bag, left the bank and began walking through the lobby of Kam Tak industrial building. The applicant, who had been maintaining a watch on customers entering the bank with a view to seeing which ones were withdrawing money and then robbing them, saw Miss Chan leave the bank carrying the bag which he correctly concluded contained money. He followed her and, on reaching the lobby of the industrial building and seeing that few people were in the vicinity, accosted her and threatened her with an imitation pistol.

3. Miss Chan immediately threw the bag to the ground, whereupon the applicant picked it up and ran off. Miss Chan, who quickly regained her composure, shouted out in alarm and pursued the applicant. The applicant then panicked, dropped the bag and the imitation firearm and attempted to escape. However, he was quickly caught and pinned to the ground. He subsequently made a cautioned statement in which he admitted the facts which we have outlined above and gave as his reason for committing the robbery that he had no money to spend on his family for the lunar new year and to pay his daughter's school fees.

4. In passing sentence the judge made reference to various decisions of this court concerning the use of firearms in the course of committing robbery. Having observed that this court has said that the fear experienced by a victim is the same irrespective of whether the weapon with which he or she is menaced is a genuine or imitation firearm, the judge was of the view that "the distinction between a real firearm and an imitation firearm should receive some consideration".

5. He stated that he took into account that there had been no aggravating features in the robbery and that no one had sustained injury. While recognising the fact that customers leaving bank premises are vulnerable to attack from those who lie in wait for them, the judge distinguished a robbery committed in those circumstances from a bank robbery.

6. Turning to the applicant's personal circumstances the judge expressed the view that the fact that the applicant was a serving police officer was not an aggravating factor because the offences had not been committed in his capacity as a police officer or in any way connected with his status as a police officer. On the contrary, the judge took into account in the applicant's favour the fact that he had given 20 years of service to the community as a police officer.

7. The judge also observed that a police officer who is serving a prison sentence endures additional hardship as a result of the need to segregate him, for his own protection, from civilian prisoners who may harbour resentment against police officers and attempt to exact vengeance on them.

8. We observe however that this is not correct. A former law enforcement officer, irrespective of the agency to which he may have belonged before being sentenced to a term of imprisonment, is not obliged to serve his sentence with civilian members of the prison population, but is given the choice of being segregated with other former law enforcement officers from civilian prisoners.

9. Bearing all these factors in mind the judge concluded that the appropriate sentence for the robbery should be one of 10 years' imprisonment after reduction from a starting point of 12 years. As to the possession of an imitation firearm at the time of committing a robbery count he was guided by the view expressed by this court in R. v. Lam Wing-kwong Application for Review No. 6 of 1993 (unreported) that a starting point of five to six years' imprisonment upon conviction after trial was appropriate for the offence of carrying an imitation firearm with intent to commit an arrestable offence. He therefore passed a sentence of five years' imprisonment for that offence and, because when passing sentence on the robbery count he had already taken fully into account the applicant's possession of the firearm, correctly ordered that the sentences be served concurrently.

10. Mr Lok, who appeared for the applicant in this court but not in the court below, submitted that the judge erred in adopting a starting point of 12 years' imprisonment on the robbery count and that he failed to give sufficient weight to the fact that the victim "was only put in momentary fear" and to the personal and family background of the applicant.

11. Because neither Mr Lok nor Mr Zervos for the Crown had been able to find any decision of this court in which guidance had been given as to the appropriate level of sentence in the case of a robbery, other than a bank robbery, committed by a robber acting alone and using an imitation firearm, we stated that we would take time to consider our decision.

12. We have great sympathy for the judge who plainly went to great lengths to analyse previous decisions of this court in robbery cases where firearms were used. Having no decided case that was directly in point, the judge was forced to extrapolate from sentences that had been considered appropriate in circumstances that were quite different from those in the case before him.

13. We can understand the difficulty which he encountered in deciding what distinction, if any, should be made in sentencing when an imitation rather than a genuine firearm is used in the commission of a robbery. We therefore offer the following guidance to judges in future cases.

14. For policy reasons we take the view that in the case of bank robberies, jewellery shop and goldsmith shop robberies, security van or payroll robberies and such the like, no distinction should be made between cases where genuine firearms are used but not discharged and those in which imitation firearms are used. Obviously, the risk that a loaded genuine firearm carried by a robber might be discharged in the course of such robbery does not exist where the robber is armed with an imitation firearm. But the chance that the police or security guards who are called to or happen upon the scene might open fire in the course of such robberies cannot be overlooked. The risk of innocent by-standers being killed or injured is always present in circumstances where decisions have to be made in split seconds.

15. However, a distinction clearly arises where a robber actually discharges a firearm during the course of committing or escaping from a robbery irrespective of where the robbery occurs.

16. We think that a further distinction should be preserved between robberies in which firearms are used in the places or circumstances to which we have just referred and those carried out by a sole robber in a public place. Those who commit the first type of robbery are aiming for high stakes. It accords with sound policy that sentences for such offences should be correspondingly higher.

17. But where an opportunist type of robber, such as the applicant in the present case, embarks on a robbery alone with an imitation firearm in a public place and inflicts no injury on his victim, the level of sentence should be considerably lower than that which is appropriate for a robbery of the first type.

18. In the present case, had the robbery been committed by using a knife or other dangerous weapon, not being a firearm, a sentence of five years' imprisonment would have been appropriate in accordance with the guidelines laid down in Mo Kwong-sang v. R. [1981] HKLR 610. However, the weapon that was used was an imitation firearm. Since the mere carrying of such a weapon with intent to commit an arrestable offence normally attracts a sentence of five years' imprisonment after trial, an overall starting point for sentence of ten years' imprisonment after trial was appropriate.

19. We think that the judge's starting point of 12 years was manifestly excessive. Applying the totality principle, and taking into consideration the fact that, although the applicant was a serving police officer at the time of the commission of the offences, he had completed 20 years of unblemished service and had plainly acted completely out of character in doing what he did, we have come to the conclusion that an overall sentence of 8½ years' imprisonment was all that was called for in the present case.

20. We therefore grant the application for leave to appeal against sentence and, treating it as the appeal, allow the appeal, set aside the sentences and substitute for them consecutive sentences of 5 and 3½ years' imprisonment respectively.