THE QUEEN v. JOU WING HUNG

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. The applicant, Jou Wing Hung, pleaded guilty on 31st January 1992 to an offence of robbery before Mr. Michael Jennings, sitting as a Deputy Judge of the High Court. On 28th February he was sentenced to 7 years' imprisonment and he now seeks leave to appeal against that sentence.

2. The facts were that at about 2:30 p.m. on 31st December 1990 a goldsmith's shop at Tsuen Wan was raided by three men, one of whom had a gun. Two customers escaped from the premises while the four members o?the staff were forced to squat or lie down on the floor. Something like an axe or hammer was used to break open the showcases and a quantity of jewellery and ornaments was stolen. I mention here that when the police arrived at the scene, they found a live 25 mm calibre bullet of Chinese origin on the floor of the shop. Some of the jewellery which had been stolen was recovered nearby. This had probably been dropped by the robbers as they made their getaway. The total value of the jewellery stolen was something in the region o?$85,000. The jewellery recovered was worth about $23,000.

3. A member of the public standing outside took down the registration number of the vehicle and passed it on to the police. Shortly after the robbery the applicant was found alone in a car with that registration number on it. It was stopped by the police. Inside the boot were found some false number plates which, however, had not been used. It was admitted that the applicant had taken part in planning the robbery and had gone with one of the robbers to buy false number plates. He had also taken part in a reconnaissance visit to the goldsmith's shop during which the use of firearms was mentioned. At the time of the actual robbery, the applicant drove round and round so that the robbers could escape with him in the vehicle after the robbery. However, they missed each other. He was arrested on the same day.

4. After his initial arrest, he was kept on remand in custody for about 7 months and was due to appear in court on 27th December 1991. He failed to appear on that day and part of the money put up by his mother as his bail was estreated. He was re-arrested on 29th January 1992.

5. The applicant is now aged about 20. He had a minor previous conviction when he was very young which can be ignored for present purposes.

6. When sentencing him, the learned Deputy Judge said that the Court of Appeal had indicated that for an offence of robbery of this When firearms where used, the starting point was 15 years' imprisonment. He said that all those who participated in such a robbery were guilty of the same offence whether their role was to carry a gun, act as a lookout or drive the get-away car. He then went on to state his view that when it came to sentence, the court could distinguish the roles played by the participants. He described the role played by the applicant and said that the only real mitigation was his plea of guilty. He then said that the proper sentence after trial for this defendant would have been 12 years' imprisonment. This he took as the starting point. He then discounted that sentence by 4 years on account of his plea of guilty and further discounted the sentence by another year on account of his youth.

7. In our judgment, the Deputy Judge was unduly lenient and should have imposed a more severe sentence. We mention the case of The Queen v. Kam Chun Pang, Criminal Appeal No. 504 of 1991 (unreported) a decision of this court dated 14th July this year. This was an appeal against sentence presided over by the Chief Justice. The judgment was given by Macdougall, J.A. We need only refer to a short passage which occurs at page 4 of the transcript of the judgment:

"Where a person embarks on a robbery in which firearms are carried the fact that he himself is not armed with a weapon but acts in the capacity of a driver of the getaway car is not of itself a mitigating factor. His role is an essential part of an enterprise to which he willingly lends his assistance."

8. The applicant was most fortunate. We consider that his application has no merits whatever. We therefore exercise the power given to us by section 83W(1) of the Criminal Procedure Ordinance and, in dismissing the application, direct that all the time while the applicant was in custody awaiting the determination of his appeal shall not count towards his sentence.