HKSAR v. Chan Kin Sum

CACC000341/1997

IN THE COURT OF APPEAL

1997, No. 341
(Criminal)

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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

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J U D G M E N T

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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