The Queen v. Yu Wai-ming and Another

CACC000159/1984

BETWEEN

Coram: Sir Alan Huggins, Ag. C.J., Yang & Barker, JJ.A.

Date of Judgment: 12th June 1984

___________

JUDGMENT

___________

Sir Alan Huggins, Ag. C.J. :

1. This is an application for leave to appeal against sentences of nine years' imprisonment for robbery. We say at once that, but for the point which has properly been taken by counsel on behalf of the Applicants, sentences of nine years might well have been regarded as proper sentences and certainly ones which we could not have said were manifestly excessive. This was a case where private premises were broken into. Two watchmen were threatened with a weapon (possibly a screwdriver) and they were tied up. A safe was broken into and attempts were made to open another. A substantial quantity of money was taken away.

2. The point which has been taken is that the learned judge, in passing sentence, having referred to certain aggravating factors said:

"In addition to those matters there is one other aggravating factor which has to be attached to you when it comes to the matter of sentencing because you both made"

and I think this word should be "impliedly"

"or directly extremely serious attacks on the integrity of the police officers concerned in this investigation and that you are prepared to do that of course was purely for your own purposes but nevertheless the consequences could have been serious."

There was some substance in the remark the judge made in that very serious allegations had been made by the police of the planting of circumstantial evidence in the form of metal fragments and paint fragments from the safe found on the clothing in the premises where the applicants were arrested, but it is well settled that it is not to be regarded as an aggravating factor that a defendant has exercised his right to plead not guilty or has advanced untrue evidence or made an attack upon the police. The use of the words "in addition" suggests that the learned judge was in fact adding something and not merely declining to mitigate where he would otherwise have mitigated.  In those circumstances it is clear that even though nine years might well be a proper sentence, the Applicants would have a sense of grievance and think that they had been punished for their conduct of the defence. We feel we have no alternative but to interfere.

3. We grant the application, we allow the appeal and we substitute a sentence of eight years' imprisonment in each case.

12th June 1984

Representation: