Cheung Yan-fui v. The Queen

CACC000029/1980

Coram: Roberts, C.J., Pickering, J.A. and Leonard, J.

Date of Judgment: 5 March 1980

-----------------

JUDGMENT

-----------------

1. CHEUNG Yan-fui pleaded guilty to a charge of attempted robbery, which occurred in private domestic premises in the early hours of the morning of the 27th October, 1977.

2. The long interval between the offence and the date on which sentence was passed on him(which was the 7th January this year) is due to the fact that the appellant and his co-defendant were given bail on the 7th November, 1977 and absconded. The appellant was not re-arrested until the 10th December, 1979. When re-arrested, he was charged and pleaded guilty before a District Judge.

3. As the Judge commented, this was a bad case of its kind. In the early hours of 27th October, 1977, a gang of four young men, some of them armed with knives secured entry into shop premises, making use of a duplicate key which had been provided by the appellant.

4. Some members of the gang went to the domestic area upstairs, where the family were asleep, and roused them. The father, mother and two children were tied up. The father was threatened that his 12-year-old daughter would be stabbed to death if he made any noise. The 12-year-old girl was taken downstairs into the shop underneath the domestic premises by the gang, presumably as a hostage to ensure silence from the rest of the family.

5. Fortunately, the entry of these men into the shop had been observed by a nearby neighbour, who was unable to sleep. He reported this to the police, who surrounded the premises and told those inside that they were there. One of the gang shouted that the family had been taken hostage and that the police should keep away. A few minutes after, the gang said that they were coming out, raised the metal shutter and did so. There was a short scuffle outside, during which one shot was fired by the police, whereupon the gang surrendered themselves.

6. We have on several occasions in this Court said that the normal sentence which should be imposed on members of a gang who are armed and who break into private premises is about six years' imprisonment. It is clear, therefore, that in imposing a sentence of 4½ years, the judge was being lenient with the appellant.

7. In view of what we have said as to the normal punishment, we have considered whether we should increase this sentence. We have not done so because we are prepared to accept in his favour that the appellant did not take part in the tying up of any members of this family nor in the use of the twelve year old girl as a hostage. We have also taken into account this plea of guilty, that he has shown a degree of remorse for what he did, that at the time of the offence he was just under the age of 19 and the pleas of leniency put forward on his behalf by his parents and by his wife.

8. For these reasons we have decided not to increase the sentence. However, we should like to make it clear that the use, or threat of the use, of a hostage, is a factor which can be expected to add substantially to sentences for offences of this kind. It is only because we have taken the view that he took no part in that aspect of the expedition that we have not increased his sentence to one of at least seven years' imprisonment. He may consider himself fortunate that we have decided not to interfere with the sentence imposed on him.

Representation:

Appellant in person

Whitehouse for crown