The Queen v. Yim Chi Lim

CACC000186/1988

Sentence: series of bank robberies: sole robber: imitation firearm: no violence: little planning

IN THE COURT OF APPEAL

BETWEEN

Coram: Silke, V.-P., Liu & Macdougall, JJ.

Date of Hearing: 23rd August 1988

Date of Judgment: 23rd August 1988

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J U D G M E N T

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Silke, V.P.:

1. The Applicant, Yim Chi Lim, was convicted upon his own plea of attempted robbery and was convicted after trial of five further offences of actual robbery. He originally sought leave to appeal both against those convictions and his sentences - those sentences being 9 years' imprisonment on the attempted robbery and 14 years' imprisonment on each of the robberies, all sentences to run concurrently.

2. In the face of the Court this morning he has abandoned his applications in respect of convictions, Mr. Hoosen has appeared for him in respect of the application for leave to appeal against sentence.

3. The attempted robbery took place on 20th October 1987 in the Cheung Sha Wan Branch of the Overseas Trust Bank. The Applicant apparently became frightened or in some way alarmed because a teller had squatted down. He ran out and a brave bank employee, Mr. Tong, followed him. Eventually he was apprehended. We say it was brave of Mr. Tong because in all of the offences the Applicant had carried, and had presented, what has been described as a "pistol-like-object" - in fact a Plastic imitation pistol - but it had been Presented on the basis of its reality and there had been threats that it would be used.

4. The series of robberies started on 29th July and continued through to 20th October. The first had taken place at the Banque Nationale De Paris in the Kwun Tong Branch. The second was on 22nd August at the Overseas Trust Bank. The third on 8th September at another branch of the Overseas Trust Bank. The fourth on 17th September at the Banque Nationale De Paris and the fifth on 22nd September at the Hong Kong Chinese Bank.

5. A total of some $240,000 in all was acquired as a result of the activities of the Applicant and in all the method was roughly the same. He entered the bank sometimes wearing sun-glasses, sometimes not; he either produced the actual gun or produced it covered in a towel; he demanded money; he threatened to use the gun if his demands were not met; he received money and left. He was on all occasions alone.

6. The evidence at trial consisted of identification evidence from persons present at the time on each of the robberies; of evidence of the pictures appearing on video cameras though these were not of very good quality and a confessional statement in relation to the attempted robbery and the robbery, at the Hong Kong Chinese Bank The Applicant gave no evidence at the trial.

7. In passing sentence, the trial judge took the view that "to a certain extent his methods were "unsophisticated" Mr. Hoosen has suggested that the unsophisticated nature of the robberies are far greater than merely "to a certain, extent" and he has urged upon us in a helpful and succinct, submission that none of the aggravating factors such as violence, the use of a real arm, considerable preparation or more than one person involved were present.

8. In Leung Wing Fu v. The Queen, C.A. 362 of 1981 (unreported), another Division of this Court was concerned with the robbery of a goldsmith shop. In the course of that judgment, reference was made to Law Wai Minn, C.A. 1001 of 1979 (unreported) and to Chan Kin Chung, A.R. 12 of 1980 (unreported). In Law, the Court, had set out guidelines for the assistance of sentencers in relation to bank robberies and suggested 6 years to be the normal for "armed robbery" of a bank. The sentence to be increased in accordance with any aggravating factors present. In Chan Kin Chung the "armed robbery" referred to in Law was explained in that the "armed" referred to knives or other weapons not being firearms or imitation firearms and went on that, if such had been carried, then the sentence should not be less than 8 years.

9. Man Yiu To, A.R. 6 of 1984 (unreported), was also concerned with a goldsmith shop robbery. In the course of the judgment of this Court, my Lord Cons, J.A. (as he then was) stated:

"The Attorney has asked us to say that this is manifestly inadequate (that is the sentences imposed there). We agree. The normal sentence to be expected where a person takes part in an armed robbery upon a bank or upon a jewellery or similar shop is one of twelve to fifteen years.

10. We have also been referred to Daly, reported in Vol. 3 1481 Criminal Appeal Reports (Sentencing) at page 340, where the English Court of Appeal had for consideration sentences appropriate to bank robberies. It has been urged upon us by Mr. Hoosen that what was said there should provide a guidelines Daly had been sentenced to a total of 15 years' imprisonment.

11. There is, however, one major difference between Daly and this instant case. Daly had pleaded guilty to seven counts of robbery, one count of attempted robbery and eight counts of possessing of firearm with intent to commit an indictable offence. Further, he had, at the very outset, confessed to the offence for which he was arrested and had brought to the attention of the police those other offences for which he was subsequently charged and to which he subsequently pleaded. While the Applicant here pleaded guilty to the attempted robbery, he did not take that course in relation to the other offences charged.

12. In the course of Daly, the Lord Chief Justice made reference to whether or not the arm which was carried was an effective firearm as opposed to an imitation one and he went on at pave 341:

"In cases where he had as described, held the gun at a customer or the cashier and threatened to use it the victim of course had no reason to believe that he was not prepared to and was about to, use it in that way."

13. The carrying of a firearm, be it imitation or not, is a seriously aggravating factor of robberies of this nature. That aggravation is increased if that gun is a real gun and is capable of being used to cause injury for it reflects on the mental attitude of the person who was concerned in the commission of the offence.

14. Generally, the Lord Chief Justice thought that for the type of offences committed by Daly, 14 years or thereabout would have been the proper sentence. He then went on to substantially discount it because of the immediate confessions to the police and the subsequently maintained pleas of guilty.

15. We accept that here there was not a great deal of sophistication and we accept that the pistol was an imitation one but these were a series of bank robberies carried out over a period of approximately three months and that is a further major factor of aggravation. It may be that the sentence as a totality and we view it as that, as clearly did the trial judge, is on the high side. We are not, however, persuaded that it is so high as to warrant our interference.

16. In these circumstances, the application for leave to appeal against sentence is refused.

Representation:

A.A. Hoosen, Esq. (D.L.A.) for Applicant.

A.A. Bruce, Esq. for Crown/Respondent.