The Queen v. Tse Yuen-fat

CACC000347/1996

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Coram: Hon Power Atg CJ, Nazareth V-P and Mayo JA

Date of Hearing: 17th September 1996

Date of Judgment: 17th September 1996

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JUDGMENT

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Nazareth V-P (giving the judgment of the Court):

1. On 13th May 1996 the applicant, Tse Yuen-fat, pleaded guilty before Saied J to 7 charges. The offences charged in counts 1, 2, 3, 5 and 6 were all of robbery of banks; that in count 4 was of an attempt to commit such a robbery, and the last in count 7 was having an imitation firearm with intent to commit an arrestable offence.

2. On 27th May 1996 he was sentenced to 10 years imprisonment for each of the robbery counts, to 8 years on the attempted robbery count and on count 7 to 5 years for having an imitation firearm. He now seeks leave to appeal against sentence.

3. The judge ordered that the sentences on counts 1 to 6 should be concurrent to each other, but that 5 years of that concurrent sentence was to run consecutively to the last count, thus making the total sentence one of 10 years.

4. The facts are as follows. The applicant committed the five robberies and the attempted robbery between 17th October 1995 and 17th November 1995 and the last offence of having with him an imitation firearm on 29th November 1995. His modus operandi was to go up to a bank teller, produce an imitation firearm, sometimes covered by his jacket, and declare robbery or hand over a written demand. In that way he obtained a total of about $108,000. On the occasion of the attempt, the teller concerned immediately pressed the alarm and hid below the counter, thus frustrating the attempt.

5. He was arrested on 29th November 1995 when walking along a street. He noted patrolling police officers ahead and immediately turned off the street but was stopped and searched. A toy pistol and some other items were found on him. He admitted that he was looking for a bank to rob.

6. In his original home-made grounds, contained in his notice of application for leave dated 13th June, he gave the following grounds:

7. Yesterday, a document in Chinese which he sent to the Court was received. It was translated and put before the Court today. It runs to some seven pages of typescript I will return to it in a moment.

8. His original notice, as I have said, consisted of complaints against his lawyer's submissions to the court below. Those submissions formed part of the verbatim record of the court below. They run to some 11 pages. Much of what his counsel said is repeated in the written document placed before us today. Looking carefully through those submissions, there is only one minor matter which could be a cause of complaint, i.e. an apparent concession that the sentence could be consecutive. However, we cannot see that in making that concession, counsel conceded any view that the court would not itself have taken. So, in that respect, the applicant had not been prejudiced.

9. As to the complaint that the counsel did not do his best, on a plain reading of the very long submission, counsel did in fact pick the main point upon which a submission could be made. This was the pressure to which the applicant must undoubtedly have felt having borrowed money, having got into debt over his gambling habit, having failed his parents and ultimately having been subjected to the demands of loan-sharks and lost the proceeds of the offences. But in that regard counsel made the most of the point there is nothing in the complaint of the way in which he presented the defence.

10. Turning to the very long document before us today, the applicant traced in some detail his descent into what, no doubt, was a very difficult situation for him - how he first got into a gambling habit and lost money on that, then lost his job, how he upset his family, continued gambling with money that he had borrowed, ultimately finding there was no other course open to him, decided to rob a bank, as he says, with out using any violence, and how he ultimately pleaded guilty. He adds that he feels very sorry and extremely regretful and concludes by asking this Court to give him a chance so that he can have time to make compensation and repayment to his parents.

11. There is very little in that, that was not urged by his counsel before the court below; and very little that would weigh in reduction of sentence. But, however that may be, the judge took a global view of the criminality of the applicant. He stepped back and took a totality of 15 years which, we think, was quite proper in the circumstances, having regard to the use of the imitation firearm as to the dangers of which this Court has commented before, and also having regard to the multiplicity of offences. That 15-year period the judge discounted to 10 in respect of the first 5 counts as we mentioned at the outset. He then ordered "that the sentences on counts one to six, shall be concurrent with each other, but five years of that concurrent sentence to run consecutive to the last count, thus making the total sentence one of 10 years". That plainly reflected a full discount for the plea of guilty. We, therefore, see no error of principle; nor was that sentence excessive. We see no reason in what the applicant has put before us to warrant any interference with the sentences.

12. We refuse leave to appeal.

Representation:

Applicant in person

Mr A.A. Bruce QC (Crown Prosecutor) for Crown/Respondent