Mo Kwong-sang v. The Queen

CACC000359/1981

Case No.: Criminal Appeal No. 359 of 1981

Date of hearing: 2nd September, 1981.

Date when judgment was delivered: 2nd September, 1981.

ORDER: The application for leave to appeal against sentence is refused and the applicant shall lose the period between the 6th August and 2nd September, 1981.

Cases cited by Counsel in agrument: Nil.

Coram: Roberts, C.J., Leonard and Li, JJ.A.

Date of Judgment: 2nd September, 1981.

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JUDGMENT

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[Appropriate sentence for robbery.]

Roberts, C.J.:

1. The applicant sought leave to appeal against sentence from a single judge, who refused the application on the 6th August. He renewed his application before us to-day.

2. The facts are simple and distressingly familiar. On the night of the 30th/31st October, 1979, the applicant and another man broke into private domestic premises occupied by two girls. One of the girls was away; the other was threatened by the two men with knives and tied up. The two men ransacked the flat and removed from it cash and various valuable articles which they found there.

3. The applicant was identified because his fingerprints were found on a tin box and a jewellery case which had been present in the flat.

4. At the time of the offence the accused was 22 years' old and was treated by the District Judge as a first offender, since other offences of which he was earlier convicted had taken place after the date of this robbery.

5. He was sentenced to 4½ years' imprisonment.

6. This is the first of five cases which are listed before us today and tomorrow in which convicted persons have applied for leave to appeal against sentences imposed on them for robbery.

7. In every one of these cases two or more men were armed with knives, with which they threatened their victims before robbing them and, in most cases, tying them up.

8. Armed robbery of this nature, which must cause terror to the victims as well as a loss of their possessions, has become increasingly common.

9. We think that it will be of assistance to District Judges of we indicate the level of sentence for armed robbery with which we would not interfere.

10. By the word "armed" in this judgment, we are referring to knives and other dangerous weapons, but not to firearms for which severer sentences are normally imposed.

11. As this court has said on a number of other occasions, little account can be given to the previously clear record of anyone who takes part in an "armed robbery".

12. We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

13. If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

14. If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

15. These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

16. These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

17. Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.

18. We realize that the adoption of this suggested level of sentence will mean that in some cases the appropriate sentence will be above the maximum which the District Court is permitted by law to impose.

19. Where a District Court would be disposed, had it power to do so, to impose a sentence exceeding seven years, the correct course would be for the judge to indicate what sentence he would have awarded if he had been able to do so and then to impose one of seven years' imprisonment.

20. If the guidelines which we have suggested to-day had been applied to the applicant at the time of his trial, his sentence would have been something like seven to eight years.

21. We do not, however, propose to apply them to him and it is sufficient to say that the sentence which he received was, if anything, somewhat on the low side, bearing in mind the average length of sentence which was being imposed for this kind of offence earlier in the year.

22. The application for leave to appeal against sentence is refused and we direct that the applicant shall lose the period between the 6th August and to-day.

Representation:

Appellant in person.

B. Ryan, Crown Counsel, for Respondent.