THE QUEEN v. SHUM YUK TONG

IN THE COURT OF APPEAL

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J U D G M E N T

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Fuad, J.A. (delivering the judgment of the Court):

1. On 6th October 1987, Shum Yuk Tong was sentenced to 7 years imprisonment for conspiracy to rob by Judge Rattigan, sitting as a Deputy Judge of the high court. He had pleaded guilty before another Deputy Judge (Judge Daniell) on 23rd March. He now seeks leave to appeal against his sentence.

2. The Applicant is now just over 26 years old. He was born, and has lived all his life, in Hong Kong. In 1979, when he was 17, he was bound over for the offence of possessing an offensive weapon but he was treated by the sentencing court as a first offender. He has been cohabiting with a lady since 1984 and they have a daughter. In the past he has been employed as a transportation worker and as a casual labourer on construction sites.

3. The indictment to which he pleaded quilty averred that on divers dates between 10th and 20th April 1986 he had conspired together with five other named men to rob the staff of the Golden Harvest Goldsmith and Jewellery Company on the ground floor of the Oi Man Commercial Complex in Homantin.

4. The men jointly indicted with the Applicant were convicted after a trial (Deputy Judge Daniell and a jury) and sentenced to 10 years imprisonment each.

5. The agreed facts before Deputy Judge Rattigan were as follows. At about 2:20 p.m on 12th April 1986 police officers attached to the Criminal Intelligence Bureau (the "C.I.B saw four men) visiting the Oi Man Estate. They were photographed. One of them was the Applicant.

6. On 18th April 1986, the Applicant, a man called Wong Yu ping (the ring-leader) and two other men were seen by the C.I.B. officers boarding a taxi which drove to the Oi Man Commercial Complex on the Estate. They got there shortly before 4:00 p.m. One man walked to the Golden Harvest Jewellery Company while the others hung around at the entrance to the Comnlex. They were there for about five minutes, and their movements were photographed and videotaped from hidden posts. Their purpose was to reconnoitre the jewellery shop

7. The four men had met earlier that day in a restaurant in Mong Kok. The Applicant had told his companions that he had found a shop to rob in the Oi Man Arcade where the police were not usually to he seen in the morning. In the taxi on the way to the Complex, the ring-leader announced that he could not take part but that he would "hire" a gun for them for $20,000. He also agreed to arrange for the two getaway cars and drivers.

8. The Applicant's part in the plan was to drive the first getaway car to a second getaway vehicle (the van) a short distance from the front of the Complex.

9. On the next day, at about .10:30 a.m., officers of the C.I.B. saw two vehicles (a private car and a van) drive to the Complex. In the vehicles were the Applicant two of the men who were in the taxi on the previous day and two other men. The two vehicles had been stolen a short time before.

10. The men and the two vehicles were watched, and photographs were taken and video recordings were made of what was taking place. The men stayed at the estate until about noon and then drove away in the vehicles. The men had been seen loitering near the Golden Harvest premises.. The vehicles drove around the estate at various times. Police officers in uniform were seen from tine to time at the Complex. The men involved were put off by these police officers and suspected that they vere under surveillance. They waited for a while for conditions to improve, then gave up and drove away.

11. The Applicant was arrested on 18th August 1986. He was taken into custody and Interviewed, about the conspiracy, under caution. In a statement he admitted his involvement in the conspiracy to rob the jewellery shop in question.

12. Counsel then appearing for the Applicant (Mr. Alderdice represents him before us) suggested that the judge should take, as a starting point, the sentences imposed by Deputy Judge Daniell, and drew attention to the fact that the Applicant was a young man with a clear record who had admitted his part in the affair to the police as soon as he had been arrested and later in his statement under caution. He had pleaded guilty on the first day of his trial.

13. Counsel further submitted that this was not a case where the evidence was so overwhelming, to the knowledge of the defendant, that he really had had little option but to plead guilty. Here, at the time the Applicant had first admitted the offence he could not have appreciated the strength of the evidence against him. This indicated a measure of remorse. Nor was this a actical plea of guilty (having persuaded the prosecution to accept a plea to a lesser charge).

14. Counsel suggested that the proper discount in this case would be about one-third of the sentence passed on a plea of not guilty. He pointed out that on the agreed facts, the Applicant's role (although fully culpable) was a lesser one than, for example, the ring-leader. The Applicant was not going to play a part in the physical aspects of the robbery since he was to be the driver of the second getaway car. An appropriate sentence might he in the region of six years.

15. This is what the learned Deputy Judge said when passing sentence:

"    The defendant has pleaded guilty to a very serious charge. You did so at the earliest opportunity. This is a strong indication of remorse.

    The defendant has a previous conviction, though of a minor nature by comparison, and you were 17 years of age in 1979, I would treat that as a clear record.

    The discount that the defendant is entitled to is in the region of one/third. Offences of this nature are very serious and are on the increase in Hong Kong. Without the intervention of the police or at least their presence it is most likely that there would have [been] another robbery.

    Cases of this nature have got he discouraged and a stiff prison sentence is handed down. I am satisfied, taking all factors pertaining to this case into account, that 7 years is about right. You are sentenced to 7 years jail custody."

16. I would mention here that the maximum sentence for common law conspiracy to commit robbery was increased to life imprisonment by an amendment to the Interpretation and General Clauses Ordinance. This is the effect of s. 90(2) of the Ordinance, as amended, read with s.10 of the Theft Ordinance.

17. Mr. Alderdice has submitted that the learned judge used too high a startin point. He did not agree with the view taken of the case by counsel representing the Applicant when. he was before the trial Court.

18. Mr. Alderdice drew our attention to the fact that the Applicant had had the sentence, which was hound to he a severe one, hanging over his head for a period of about seven months while the trial of the other persons jointly indicted with him was Proceeding. He submitted that an appropriate case to consider would be R. v. Eduardo Concha k Others Criminal Appeal No. 343 of 1985 (unreported), pointing out that the defendants in that case received sentences of 10 years' imprisonment for conspiracy to rob which were not interfered with by the Court of Appeal. He suggested that the facts there were much more serious than the facts of the case before us. That may well he true because it is quite plain that the case cited to us was a very serious example of conspiracy to rob.

19. However, having considered the facts of the present case, and all that has been urged upon us, we are unable to say that the judge erred in imposing the sentence he did, by using the wrong starting point. There can be no doubt that if the police officers had not been so vigilant and the Applicant and his companions had not been scared off, a very grave robbery would probably have been committed. The sentence was not manifestly excessive.

20. The application for leave to appeal against sentence is dismissed.