R. v. YU CHI WING

IN THE COURT OF APPEAL

1996, No. 566
(Criminal)

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J U D G M E N T

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

1. The applicant was convicted of eight charges upon his own plea. On 21st October, 1993, he and KONG Man Keung robbed a woman in a lift, the subject of the first charge. He resisted arrest, the subject of the third charge. After arrest he was found to have offensive weapons upon him being two paper cutters, the subject of the second charge. He admitted the offences under caution and volunteered confessions of five other robberies which he had committed with Kong, the subject of the fourth to eighth charges. He was sentenced to concurrent sentences on each charge the result of which is that he has been sentenced to imprisonment for five years. He now seeks leave to appeal against those sentences. The gravity of the offences in the six convictions for robbery makes it unnecessary to consider the sentences on the convictions on the second and third charges which were six months and one month respectively.

2. After his arrest he co-operated fully with the police. Thus his admission of the first three offences and the confessions as to the fourth to eighth charges which were for offences apparently unknown to the police. He took the police to and identified the scene of each robbery. He took the police to a jewellery shop to which stolen items of gold were sold and identified the shop assistant who had dealt with them. He was given bail. Notwithstanding his co-operation he failed to answer to his bail on 10th October, 1994, and was not re-arrested until 4th June, 1996. On 1st July, 1996, he was convicted of an offence of possession of dutiable goods for which he was sentenced to 14 days imprisonment.

3. At the time of the offences with which we are concerned the applicant was aged about 16 years and nine months. Apart from the conviction for possession of dutiable goods he had a criminal record. On 3rd January, 1989, when he was about 12 and a half years old he was convicted on one charge of theft and another of assault occasioning actual bodily harm. For those offences he was put on probation for 18 months. However, be breached the terms of his probation order by failing to attend school with the result that he was sent to a boys' home for 12 months with effect from 13th February, 1989. While there his behaviour fluctuated. On one occasion he was described as a model resident. On other occasions he bullied the other residents and beat them to force them to serve him. Before then, he had shown no respect to the headmaster of his school, played truant and had a record of fighting as well as theft at school.

4. A plea of guilty or an early admission of guilt is usually taken as a sign of remorse. That is not so in the present case. The applicant failed to answer to his bail and gave the excuse that he had forgotten to turn up. Notwithstanding that he made admissions to the police he denied the offences to the probation officer. Notwithstanding his pleas of guilty he said to the probation officer that his convictions were beyond his expectation. He claimed that he was living with his maternal grandmother but according to her he had moved out more than a year before and she had no idea what had happened to him. He told the probation officer that he had suddenly remembered the offences and had approached the police on his own initiative.

5. In sentencing the applicant the Judge below took into account everything that he could in his favour. First, he took into account that the offences in the fourth to eighth charges would not have come to light but for the applicant volunteering his confessions. Secondly, he took into account the applicant's age. At the time of the offences Kong was aged 29 years and the Judge took into account the fact that the applicant may well have been under his influence to an extent. This despite the fact that the record of one of his cautioned statements contains the following :-

"Question : Who did propose the robbery every time?

Answer : It's not that either of us made the proposal. We just went together without any arrangement."

Thirdly, the Judge took into account the fact that the offences had been hanging over the applicant's head for three years notwithstanding that it was he who had brought about that situation.

6. In relation to the first charge the Judge adopted a starting point of five years but reduced it to one of three. This was no doubt mainly due to the fact that although the applicant was in possession of the paper cutters at the time there was insufficient evidence that they had been used in that robbery. The victim was only able to say that one of the robbers had held something small at chest height. So far as the fourth to eighth charges are concerned weapons were used. In one it was a fruit knife wielded by the applicant. In the other four, paper cutters were used, wielded by the applicant on three of those occasions. In addition, each of the robberies was violent and in each of the six robberies the victim was pushed out of the lift afterwards. The victims of all the robberies were unaccompanied women, all robbed in lifts. For the last five charges the Judge adopted a starting point of six years. He commented that if the applicant had been an adult at the time of the offences he would have used a starting point of eight years. It is clear that on the totality principle what the Judge had in mind was a total sentence of eight years but in all of the circumstances he concluded that a total sentence of five years would be right. He therefore reduced the sentence on the last five convictions to one of five years and ordered that all of the sentences should be served concurrently.

7. It is clear from the cautioned statements of the applicant that he and Kong conceived a plan which they executed. This was to arm themselves and then to wait at the ground floor lift lobbies of buildings for an unaccompanied woman to enter one of the lifts. They would follow her in, press the button for a high floor and rob her. When the lift stopped they would bundle her out and make good their escape. This they did six times between 5th and 21st October, 1993. These were serious and violent offences and, on the totality principle, we are quite unable to fault the Judge.

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