THE QUEEN v. TAM CHIN MAN

IN THE COURT OF APPEAL

1994, No.602
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced three counts of robbery and one of having an imitation firearm with intent to commit an arrestable offence. He pleaded guilty to those charges and was given sentences which, having been ordered to be served partially consecutively and partially concurrently, resulted in a total sentence of seven years.

2. The circumstance of the first offence were that on 6th May 1994 the applicant went into the Standard Chartered Bank in Sha Kok Estate and produced a paper to the teller upon which was written the words "robbery, have gun, take out money quickly". The teller produced a sum of $21,970 and gave it to the applicant who then left. There was in fact no gun produced. The production of the written demand had the desired effect.

3. The second offence which was on 17th May occurred when the applicant was observed by the police walking near several banks in Tai Wai, Shatin. He was intercepted, and the police, upon searching him, found a toy pistol and a slip of paper reading "robbery, have gun". He admitted under caution that he was looking for a bank to rob.

4. In mitigation it was said that he came from a good family and was under financial pressure because of a business failure.

5. The judge took into account his clear record and his previous good character and was satisfied that he could not be categorized as a professional bank robber. However, he also, quite properly, bore in mind that what he had done had been enough to effect one bank robbery and that he was embarking upon another one at the time of his apprehension.

6. The judge took a starting point of eight years for the robbery conviction and of five years for the possession of an imitation firearm. He then gave a one-third discount in each case for plea and, from the totality of eight years and eight months that resulted, he gave a further discount for the other mitigating circumstances resulting in a sentence of seven years. The judge took into account all of the matters that were material to be considered but we, nonetheless, consider that the sentence, given the mitigating circumstances and the clear record of the applicant, was too high. We think it would have been appropriate to have taken a starting point of seven years for the robbery and to have reduced that for plea and for the other mitigating circumstances to four years. We would not interfere with the sentence imposed upon the other charge but we would order that one year and four months of that sentence be served concurrently with the sentence of four years. This will produce a totality of six years. The application for leave to appeal will be allowed and the sentences will be adjusted as indicated above.