THE QUEEN v. SIU YUN FUK

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JUDGMENT

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Hon. Yang, C.J.:

1. This is an application for leave to appeal against sentence.

2. The applicant pleaded guilty to five counts of robbery and one count of burglary before Mr. Justice Kaplan and he was sentenced to ten years' imprisonment on each of the robbery counts and four years' imprisonment on the burglary count, those sentences to run concurrently.

3. The applicant is a man of 30 years of age and he has a previous record of possession of offensive weapons in 1982, of unlawful possession and theft in the same year, robbery in 1983, attempted robbery in 1985, and possession of instrument fit for unlawful purpose in 1986, culminating in his conviction on 14 counts of robbery in 1987 for which he was sentenced to concurrent terms of imprisonment of four years. So at the time of the offences now under consideration, he had been out of prison for just about one year.

4. The facts of the case are relatively straightforward. Between October and December of last year he committed the five robberies and burlgary in question. The first robbery was committed on the 10th October when he went into a domestic hut in Pak Tin Upper Village and threatened a 74 year old woman and her 16 year old granddaughter with a pair of scissors, tied them up, and a sum of $14,700 in cash together with gold jewellery was taken.

5. On the 23rd November, he was seen loitering outside a house at Sha Tin Tao Village. He was asked by one of the two lady occupants of the hut as to what he was doing and he followed this woman and demanded that he be let into the house. When she refused he threatened to set the houses on fire. Shortly afterwards, the woman's husband returned and he threatened the occupants by saying that he was armed with a gun and had two accomplices in hiding on the hillside nearby. Eventually the victims handed over $500 in cash and some gold ornaments to the applicant.

6. Six days later he broke into a hut in the same village and there robbed the occupants, who were then sleeping, of some $300 cash and gold ornaments. He was armed with a wooden pole. A Chatered Bank Moneylink ATM card was also taken away and a victim was forced to give his code numbers. Later, together with his accomplices, he used the card to withdraw a sum of $6,000. During the robbery the occupants were tied up with string and a necktie.

7. On the 11th December, the applicant and another man were seen loitering outside a hut in Miu Tat Village. To deflect trouble the occupant of the house invited these men inside and there the applicant and his companion robbed him of a "Seiko" wrist watch, several items of gold jewellery, and $3,500 in cash. The intruders also told the victim to go to the bank to draw cash, warning him that if he took the opportunity to call the police, they would burn his house and kill his family. The victim then went to the village and withdrew several thousand dollars from the bank and gave it to the intruders.

8. Here we ought to mention, en passant, that whilst the charge, i.e. charge 4, mentions that two sums of cash, one of $2,000 and the other one of $3,500, were stolen, the Summary of Facts mentions that apart from the $3,500 in cash, a sum of $7,000 was withdrawn from the bank. It would appear from the notes of proceedings that while it was indicated that the applicant admitted the correctness of the Summary of Facts, the summary was in fact not read out in open court. We would suggest that the better practice is for Summary of Facts to be read out in court, in which case any discrepancy here between the facts as stated and particulars of the charge would have been revealed. In this case, nothing turns on the discrepancy. Counsel for the Crown confirms that the sum withdrawn from the bank was in fact $2,000.

9. We now come to the fifth robbery, which was committed on the 12th December by the applicant and another man at Kwun Yam Shan Village. They told the occupant that they were illegal immigrants from China and demanded cash. The occupant gave them $500 but the applicant brandished an axe and demanded more. They entered the house and ransacked it, taking away $11,000 in cash. Before they left, they locked the victim inside his own house.

10. The burglary in question was committed on the same day. The victim left her home at Kwun Yam Shan Village at 6.30 a.m. making sure that the house was locked and secured. When she returned in the afternoon she discovered that the iron grille has been forced open. A sum of $8,000 in cash and some items of jewellery had been taken away.

11. The learned trial judge in assessing sentence took the view, in our opinion rightly, that the only mitigating factor in this case was the applicant's plea of guilty. It is also submitted to us this morning that upon being arrested he fully co-operated with the police by making a full admission.

12. In adopting a starting point of 12 years for the robbery, the trial judge gave a discount of two years for his plea of guilty. For the burglary charge, the trial judge took a starting point of five years and reduced it by one year for his plea. It is suggested this morning that the starting points for both offences were too high. It was suggested that on a single count of robbery, a proper starting point should be seven years with a totality of ten years for the five counts. In our view, the multiplicity of the offences as well as the aggravating factors in some of the robberies, for example, the brandishing of an axe, the threatening of an old woman, and the fact that the applicant was accompanied by other persons, were such that a starting j point of 12 years is in our view in accord with the authorities. We do not think that the discount of two years is in anyway ungenerous.

13. As to the burglary charge, we are of the view that the five year starting point was too high had it been a single count. As it was in any event made to run concurrently with the sentences on robbery and as the sentencing judge approached the matter on the basis of totality nothing here turns on this.

14. We do not find any substance in any of the grounds of appeal submitted this morning. We would therefore dismiss the application and order loss of time of three months.