Leung Siu-ming and Others v. The Queen

CACC000157/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 157 OF 1975

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 18th June, 1975.

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JUDGMENT

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1. The four appellants in this case appeal against their sentences for a robbery which took place on the 28th July, 1974.

2. The facts are simple. The first three appellants entered a watch shop, two of them were armed with melon knives and the third had a plastic bag. The occupants of the shop were herded to the back of the shop and one of the three appellants seized 22 watches and put them into the bag. One of the occupants of the shop managed to escape through the back door of the premises and alert the police. The robbers, noticing that this had occurred, fled to a car which was outside the shop, the driver of which was the fourth appellant. The car made off but was followed and the four robbers were arrested. It transpired later that the car had been stolen.

3. At the trial, the first three appellants pleaded guilty and the fourth appellant pleaded not guilty but was convicted by the jury. On the robbery count the judge sentenced the first, second and fourth appellants to seven years' imprisonment and the third appellant to six years' imprisonment. The reason for this was that the third appellant is only 19 years of age and this was his first offence.

4. It was urged on behalf of the first three appellants that the judge did not make any, or not sufficient, allowance for their pleas of guilty. The case of Haan⁽¹⁾ was drawn to the attention of the court. In that case the approach of the court towards this question was put as follows: The court said that when a court is considering what allowance to make for a plea of guilty it should put the question "What would be the sentence had the offender pleaded not guilty, had been tried and had been convicted by the jury?" Counsel for the first three appellants said that if such a question were asked in the present case the sentence, namely seven years, passed on the fourth appellant provided the answer.

5. We do not think that the case of Haan⁽¹⁾ is authority for saying that a court must make an allowance in the sentence for a plea of guilty in every case. Each case must depend upon its own facts, and in certain circumstances, pleas of guilty are almost inevitable. Such a case is the case now before us. The appellants were arrested immediately after the robbery after a short chase. They had the stolen watches in their possession and they made confessional statements. We think that in such a case the judge has a discretion whether to make an allowance or not.

6. However, we have considered carefully what counsel has said in favour of all four appellants and we think that the sentences in this case are outside the sentences normally passed for robberies of this nature. This was conceded by counsel for the Crown. The property was recovered, no one was injured and the robbers were caught immediately after the offence.

7. In the circumstances, we think that justice would best be done if we reduced the sentences of the appellants on each of the robbery counts by one year. But we wish to make it clear that we have taken this course because we consider the sentences to be excessive, outside the usual tariff: and not because of any supposed failure of the judge to take into consideration the pleas of guilty of the first three appellants. It follows that the first, second and fourth appellants will serve six years' imprisonment and the third appellant five years' imprisonment on the robbery count.

Representation:

Sakhrani (D.L.A.) for 1st, 2nd and 3rd appellants.

H.Y. Leung (Ho & Co.) for 4th appellant.

Carolan for crown.

(1) (1967) 3 All.E.R. 618.