The Queen v. Lam Bun

CACC000268/1989

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Coram: Silke, V.P., Power & Penlington, JJ.A.

Date of hearing: 6 September 1989

Date of delivery of judgment: 6 September 1989

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J U D G M E N T

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Penlington, J.A., delivered the judgment of the Court:

1. This is an application for leave to appeal against sentence on a charge of robbery.

2. The facts of the matter have already been before this Court when three other participants in this robbery also appealed against conviction and sentences (R. v. CHIN Sin Fu and others, Crim. App. 191/1988), so there is no need to set them out in any great detail. On 11th October, 1987, some. 21 boxes of silver valued $2.5 million were being taken to Kai Tak Airport by a security van, to be sent to Germany. As a result of information which had been supplied by a Mr. LEUNG Chak man, who was employed by the security company, this consignment was hijacked by a group of men, including this Applicant. The occupants of the van were threatened with beef knives, they were tied up and blind-folded. The security company employees were not physically injured, although this Court has said that where weapons such as knives are used in a robbery there must be the assumption that if resistance is offered those weapons will be used. However they were not used on this occasion and, as Mr. Plowman points out, this was not a robbery involving the use of firearms.

3. The employees of the security company managed to free themselves but the boxes of silver were transported to another vehicle and only a small part of them has ever been recovered.

4. This Applicant, following the robbery, fled to Macau but he was returned in July 1988 by the Macau authorities because he was an illegal immigrant. However information had been supplied to the Hong Kong Police who were waiting his arrival; he was arrested and he gave a full confession statement to the police. He pleaded guilty to his part in this affair at trial and received a sentence of 11 years imprisonment. The trial judge, Hopkinson J., said that he gave a discount for the plea of guilty but, in view of the Applicant's active participation in this robbery, he considered that sentence was appropriate.

5. Mr.Plowman submits that this sentence was inappropriate in the light of the sentences passed on the other participants, one of which was varied by this Court as a result of an appeal by one of the robbers, CHIN Sin Fu, who the Crown accepted was the mastermind. His sentence was reduced from 12 years to one of eight years' imprisonment. This was on the basis, however, that not only had he pleaded guilty but he had given a great deal of assistance to the Police and indeed boxes which have contained the silver were recovered purely because of information which he had supplied. LEUNG Chak Man, who was in a position of trust and who pleaded guilty, received a sentence of nine years' imprisonment and it is suggested that this Applicant should, if anything, receive less than that. However LEUNG, while he was in a position of trust, did not actually participate in the robbery himself and we feel that those two factors really balance each other out. Another defendant who played a similar role to that of the Applicant, LIN Siu Keung, was sentenced to 11 years after trial.

6. Taking into account all that has been said to us by Mr. Plowman, we considered that the sentence of 11 years is excessive on a plea of guilty for a robbery which, while serious in that it was the hi-jacking of a bullion van, did not involve the use of firearms or an excessive use of violence. This Applicant should receive the same sentence as was passed on LEUNG, that of nine years' imprisonment. The application is therefore granted, we treat this hearing as the appeal and the Applicant's sentence is reduced from 11 years to one of nine years.

Representation:

Gary Plowman (William Au & Co.) for Applicant

I.G. Cross, Deputy Crown Prosecutor (Ag.), for Crown/Respondent