The Queen v. Chan Chi-yuen

CAAR000008/1983

BETWEEN

Coram: Sir Alan Huggins, Ag. C.J., McMullin, V.-P. & Yang, J.A.

Date: 8th July, 1983.

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JUDGMENT

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McMullin, V.-P. :

1. This is an application for review of sentence by the Attorney General. The Respondent pleaded guilty on the 23rd of May in the District Court to four counts of robbery. He received a sentence of four months for the first charge and was given conditional discharges on the remaining three charges. These were in-premises robberies and the circumstances in each case were grave. In each case the Respondent in the company of either two or more men entered a restaurant and approached the cashier, one of them being armed with a knife with which the cashier was menaced and a large quantity of cash being removed thereafter.

2. Thus between the 6th of March and the 20th of March, the period during which all four offences occurred, sums of $15,000, $6,500, $5,000 odd and $4,000 odd were taken by the defendant and his accomplices.

3. The defendant was arrested with two other persons on the 6th of April, 1983 Upon arrest, the police discovered two beef knives at the premises similar to those which had been used in the robberies. Police enquiries revealed that all three men, including-this Respondent, were recent illegal arrivals from China. The Respondent himself had come here in March of 1983 and it is therefore clear that he embarked upon this career of crime almost at once after entering the territory.

4. It may be said that even at first sight these sentences appear to be unusual. However in passing sentence, the District Judge noted the following facts: firstly that although these were serious robberies the Respondent had pleaded guilty to each of them. He thought that detention in a Detention Centre might have been appropriate, as he. put it, other things being equal. But as against that he thought that the. fact that the Respondent would almost certainly be deported. after serving sentence the care and follow-up supervision which would attend such an order 'would be unavailable

5. Most importantly however he noted that responsibility for none of these offences would ever have been laid to the Respondent's door but for his own confessions.

6. Mr. Duffy for the Applicant has drawn our attention to the decision of this court in Tai Ming - keung where the court said that it was erroneous in principle in cases of a similar nature to this to consider a detention centre order. We fully endorse that opinion. Moreover upon the guidelines which were laid down in Ago Kwong-sang - which may perhaps to some extent have been superceded by the current spate of such offences - a sentence of 5 to 6 years would have been appropriate in such a case as this.

7. Had this case been fought and the Respondent convicted after trial, we would have thought that a sentence in that range would have been perfectly proper.

8. We feel obliged. therefore to allow the application but in doing so we must note two factors. Firstly there is the fact, as the District Judge noted, that but for his confession this man would never have faced a court at all. We think that a considerable discount should be allowed for that Even in cases where there is an abundance of evidence available for trial and there has been a plea of guilty, it has been a familiar practice in. these courts to allow as much as 25% for the plea. That of course depends upon the quality of the plea and the point of time at which it is offered.

9. The second factor that we take into account is that this is a case taken upon review. It is the practice of this court upon such applications to allow an additional quantum of discount in that regard.

10. Taking all these matters into account therefore we allow the application, we set aside the sentences imposed and we ''impose in respect of each count a sentence of 2 years and 9 months, the sentences to run concurrently.

Representation:

J. Duffy for Applicant/Crown.

Respondent in person.