THE QUEEN v. LEONG CHI WAI AND ANOTHER

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicants pleaded guilty before Deputy Judge Leong (as he then was) in the High Court to one count of robbery, one count of attempted robbery and two counts of possession of an imitation firearm at the time of committing those offences. They were both sentenced to consecutive terms of 8 and 2 years' imprisonment respectively on the robbery count and the associated possession of an imitation firearm count, and to consecutive terms of 8 and 2 years in respect of the attempted robbery count and its associated imitation firearm count. The judge ordered that the two ten year terms be served concurrently. The applicant now seeks leave to appeal against those sentences.

2. The agreed facts were as follows. At about 11.40 a.m. on 8 January 1990 the two applicants and an accomplice rushed into a jewellery shop in Shatin. The first applicant was armed with what appeared to be a genuine pistol, the accomplice held a hammer while the second applicant was armed with a melon knife. The accomplice then attempted to smash the showcase with the hammer while the second applicant stood at the entrance and acted as lookout. When the accomplice failed to smash the reinforced glass of the showcase, the first applicant threatened a female member of the staff with the pistol and ordered her to hand over gold ornaments. The robbers then fled with bracelets valued at more than ten thousand dollars.

3. Two weeks later, on the 22 January 1990 at about 2.35 p. m., the same three men returned to the jewellery shop and again declared robbery. The first applicant again pointed what appeared to be a genuine pistol at a female member of staff and demanded that she hand over gold ornaments. Very courageously, she refused to do so. The first applicant then pointed the pistol at a male member of the staff and repeated his demand. In the meantime the accomplice renewed his earlier attempt to smash the glass top of the showcase. This time the hammer broke into two pieces.

4. Unbeknown to the robbers their activity was being observed by a plain clothes police officer who summoned assistance over his beat radio. This however alerted the second applicant who was acting as look out at the jewellery shop door. He raised the alarm and the three robbers fled in different directions. The plain clothes officer pursed the first applicant and eventually, with the assistance of two uniformed officers, managed to overpower him after a violent struggle. The first applicant subsequently made a number of cautioned statements in which he admitted that he had held an imitation pistol both at the robbery on the 8 January and the subsequent attempted robbery.

5. The second applicant was apprehended at a nearby bus terminus by another police officer. He later admitted that he had sold the bracelets stolen in the course of the robbery on the 8 January for about nine thousand dollars and that the three robbers had shared the proceeds equally.

6. At the time of the commission of these offences both applicants were seventeen years of age. The first applicant had a clear record whereas the second applicant had previously been convicted of abstracting electricity and of attempting to obtain property by deception. After calling for and considering probation reports the judge observed that as the applicants had acted in concert the fact that they had assumed different roles in the course of the commission of the offences did not justify any distinction being made between them for the purpose of sentence. He stated that the starting point for sentencing in cases of robbery in circumstances such as in the present case was one of ten years' imprisonment and that that for being in possession of an imitation firearm was one of three years' imprisonment consecutive to the sentence for the robbery. He added that he regarded the attempted robbery in a more serious light than the earlier robbery because, having being committed so soon afterwards, it demonstrated the applicants' defiance of law and order. He then took in account the fact that both applicants' had pleaded guilty.

7. Mr. Chandler, who appeared for the applicants in this court but not in the court below, submitted that the overall starting point of thirteen years for each pair of offences was excessive and that it should have been one of between ten and twelve years. He further submitted that the judge had failed to give proper weight to the age of both applicants, their pleas of guilty, their amateurish execution of their crimes, the first applicant's clear record, that it was the second applicant's first venture into violent crime and that no actual physical violence had been used on any of the occupants of the jewellery shop.

8. Mr. Chandler contended that the judge was wrong to say that the predominant mitigating factor was the fact that both applicants had pleaded guilty. He submitted that the most important consideration was their youth.

9. We were referred to a number of other cases in some of which sentences different from those imposed in the present case were passed. We are concerned only with the circumstances of the present case and whether, in the light of those circumstances, the sentences imposed on the applicants were manifestly excessive or wrong in principle.

10. What must not be lost sight of is the fact that the applicants did not commit one isolated robbery but were involved in two separate incidents, the second of which would also have succeeded had it not been for the vigilance of the police. In Attorney General v. Man Yui To Cons, J.A. (as he then was) in delivering the judgment of the court said:

"          The normal sentence to be expected where a person takes part in an armed robbery upon a bank or upon a jewellery or similar shop is one of twelve to fifteen years.''

11. As Silke V.-P. observed in The Queen v. Tam Kai Chung, 0Cr. App. 364 of 1990 (unreported) with reference to the display of guns in the course of robbery:

"          It matters little whether the pistol displayed is a real or a toy one in so far as the same alarm is caused to those who see it."

12. Jewellery shop robberies have become commonplace in Hong Kong. Those who participate in crimes of this Kind must expect to receive heavy sentences. In the circumstances of the present case we are not disposed to interfere with the sentences imposed. The applications are therefore refused.