Attorney General v. Tso King Yin and Another

CAAR000008/1980

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Coram: Li, J.A., Power & Barker, JJ.

Date of Judgment: 10 July 1980

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JUDGMENT

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Li J.A.:

1. These are two applications for leave to apply for review of sentence namely No. 8 of 1980 and application No. 10 of 1980. As to the application for leave in No. 10 of 1980 we have heard counsel and the reasons therefor. We are inclined to accede to the application for leave. Leave is granted. We are of the opinion that, in all fairness, legal representation should be granted also to the respondents and we order accordingly. At this stage the least we say about the merits of this application and the reasons therefor the better.

2. We now come to the application for leave in respect of No. 8 of 1980. The facts of that case are that the respondent was one of two persons who planned a robbery in a restaurant. The respondent carried in his waistband a knife which by all standard, may be described as a lethal weapon. He stood near the lift at the top of the staircase on the 1st floor where the restaurant was located when his confederate snatched some $800 from the shroff of the restaurant. His confederate then ran away down the stairs instead of taking the lift. The respondent immediately followed his confederate to run away. In other words, he did not resist the pursuers. There was a hue and cry. The captain and employees of the restaurant, instead of chasing after the person who took the money, chased the respondent. In the course of the run the respondent did not turn back to produce or use that knife to resist the pursuers. Instead he threw the knife away near two flower pots on the pavement before he was caught.

3. The learned trial judge found him guilty. The judge also found that he did not take a principal part in that robbery. He took into consideration that he had a clear record and that he did not carry out his plan to the full by producing or using the knife to resist the pursuers or to resist arrest. He said in his reasons for sentence that as a matter of principle he would consider the one who took the money as the principal and that, having any special circumstances, he would have sentenced the other man to three to four years' imprisonment had he been apprehended and convicted. Taking all into consideration the seriousness of the offence the learned trial judge imposed a sentence of two years' imprisonment on the respondent.

4. Learned counsel for the Crown in his application tendered a list of statistics to show that the normal tariff sentence in cases like present one should be at least four to five years' imprisonment. We feel that this list can merely indicate a general area for the judge to exercise his discretion. There must be what we call the top and bottom scale in the tariff. Taking all into consideration, bearing in mind that the respondent never carried out what he planned to do the full, but ran away, some consideration had to be given. We are of the opinion that the learned trial judge's sentence was definitely on the low side. The normal sentence should have been slightly higher. However the criterion for this type of application is that the sentence must be manifestly inadequate. A matter of a few months difference is not sufficient to persuade us to say that the sentence is so inadequate that it has to be reviewed. For these reasons leave to apply in the case of No. 8 1980 is refused.

Representation:

M. Lucas (Legal Department) for applicant