HKSAR v. Chan Kin Sum
Read the full judgment text of CACC 341/1997 on BabelCite. This Court of Appeal judgment was delivered on 24 October 1997 before Mayo JA, Keith J, Yeung J.
Criminal law – sentencing – robbery – attempted robbery – bank robberies – threats by written note – threats of firearm and bomb – guilty plea discount – totality principle – concurrent sentences – manifestly excessive – leave to appeal against sentence. The applicant pleaded guilty to one count of attempted robbery and three counts of robbery of banks committed over approximately one month. His modus operandi was to hand tellers a slip of paper in Chinese demanding HK$200,000, on some occasions implying he had a firearm and on others threatening a bomb. Amounts obtained were HK$6,400, HK$44,000 and HK$11,950. He was 20 years old with prior robbery convictions and claimed he acted in desperation to help his fiancée pay gambling debts. The sentencing judge (Gall J) adopted starting points of 11 years (count 4, bomb), 8 years (count 3, firearm), 6 years (count 2, firearm) and 10 years (count 1, bomb, attempted), reduced each to reflect the guilty plea to 7, 5, 4 and 6 years respectively, and ordered all sentences to run concurrently to reflect the totality principle, giving a total of 7 years' imprisonment. Whether the sentences were manifestly excessive or wrong in principle – held: no – robbery of banks using threats, including bomb threats, is serious; differentiation of sentences according to the nature of the threat was principled; the guilty plea reductions and the concurrent order properly applied the totality principle; the applicant's record and the limited mitigation did not warrant a lesser sentence. A medical condition raised for the first time on the application for leave to appeal was not a matter to which the court could give weight. Application for leave to appeal against sentence dismissed.
Legal issues: Whether sentences for multiple bank robberies were manifestly excessive or wrong in principle
Outcome: Application for leave to appeal against sentence dismissed
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CACC000341/1997 IN THE COURT OF APPEAL 1997, No. 341 ______________
______________ Coram: Hon. Mayo, J.A., Keith, J. and Yeung, J. in Court Date of hearing: 24 October 1997 Date of delivery of judgment: 24 October 1997 ______________ J U D G M E N T ______________ Mayo, J.A. (giving the judgment of the Court): 1. The Applicant pleaded guilty to 1 count of attempted robbery and 3 counts of robberies. He was sentenced to a total of 7 years' imprisonment. He seeks leave to appeal against the sentences imposed upon him. 2. The Applicant's modus operandi was to approach a teller at the bank and produce to him or her a slip of paper with Chinese characters written on it saying words to the effect that he wanted HK$200,000 in cash given to him quickly. In the case of the 2nd count nothing more was said. However, he was carrying a bag and succeeded in conveying the idea to the teller that he had a firearm and that it would be used if his request was not complied with. 3. In the case of the 3rd count characters were written on the piece of paper indicating that he had a gun and the teller should be quick or else you will be sorry. 4. In the case of 1st and 4th counts reference was made to a bomb. 5. The 1st count related to the occasion when he was caught. The teller had succeeded in activating an alarm which also alerted the security guards at the bank. They succeeded in subduing him and apprehending him pending the arrival of the police. 6. The amounts involved on the various charges were HK$6,400, HK$44,000 & HK$11,950. 7. Mr. Justice Gall, the sentencing Judge adopted 11 years on the 4th count as his starting point and reduced it to 7 years to reflect the guilty plea. He adopted 8 years as the starting point on the 3rd count and reduced it to 5 years and adopted 6 years as the starting point on the 2nd count and reduced it to 4 years and adopted 10 years as the starting point on the 1st count and reduced it to 6 years. Although the offences were committed over a period of a month, the Judge ordered that all the sentences should be served concurrently. He made this order so as to take cognizance of the totality principle. 8. It should also be added that the rationale for the different sentences imposed was to order longer sentences where the threat was a bomb. 9. Besides the pleas there was not much which could be called in aid to mitigate these offences. The Applicant who is a young man aged 20 has a bad record including convictions for robbery. It was said in mitigation before the Judge that the Applicant acted in desperation as he was assisting his financée in paying off her gambling debts. 10. Before us, the Applicant referred to a medical condition he was suffering from which necessitated surgical intervention. This is not a matter which we can carry much weight on an application of this nature. We are confident that he will receive any necessary treatment. If the ailment has more serious implications this is a matter which may lend itself to intervention by the Executive should this be appropriate. 11. Be that as it may all these offences were serious ones and none of the sentences were either manifestly excessive or wrong in principle. This application is dismissed.
Representation: Mr. D.G. Saw, S.C. & Mr. Simon Tam, G.C., (DPP) for Respondent Chan Kin Sum, Applicant in person |