Attorney General v. Miguel Tapay(D2) and Others

CAAR000007/1985

Headnote

Review of sentence - armed robbery - shot fired to facilitate escape - shot not fired at people - imprisonment of nine years on review.

BETWEEN

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Coram: McMullin, V.-P., Li, V.-P. & Yang,. J.A.

Date of hearing: 21st June, 1985.

Date of delivery of judgment: 21st June, 1985.

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JUDGMENT

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Yang, J.A.:

1. This is the Attorney-Generals application to review the sentences on a number of Defendants in a robbery case. The facts are as set out in the agreed facts which were submitted before the trial Judge.

2. At about 3 p.m. on the 10th September last year a number of Filipino males entered the Dabera Jewellery Company in the shopping arcade of Swire House. As soon as they entered, a pistol-like object was produced to intimidate the shopkeepers. Some of the intruders went to the basement and then came up, it would appear, without having obtained anything of value. It was at about this time that an employee of the shop was trying to get into the shop but was unable to do so because the glass security door was shut and it could not be opened unless somebody within the shop pressed a button underneath the counter. The intruders had the intention of admitting the employee into the shop but as they were unable to open the door, they panicked and an attempt was made to shatter the glass in order to facilitate their escape.

3. In the meantime an employee activated an alarm bell and the police arrived. At the same time an employee activated the glass security door to allow the intruders to escape. Some of the intruders were caught almost immediately and another one at the airport some two days later. Nothing was lost.

4. During the attempted robbery a shot was fired within the shop. We do not know the reason for which the shot was fired but it would appear that it was not fired with a view to injuring or frightening people, but to facilitate escape because the shot was directed at the glass door. We have to take into account that there were a number of people on the other side of the glass door looking in when the shot was fired.

5. The three Respondents before us pleaded guilty to the attempted robbery and were sentenced to five years' imprisonment. It is submitted on behalf of the Attorney-General that the sentence imposed is manifestly inadequate. We have been referred to a number of cases which we do not propose to discuss in detail save to say that we have considered them with care. It would appear that jewellery robberies in Hong Kong are prevalent and we do have in recent years a substantial number of cases of robbery committed by foreigners, most of whom were Filipinos.

6. It would appear from the cases cited that for an attempted robbery where shots were fired not at people and where the defendants plead guilty, the proper range of sentence would be something like ten to twelve years.

7. It is submitted on behalf of the 2nd Respondent that he had no knowledge of the presence of any firearm. But the agreed facts revealed that the pistol-like object was produced at the outset of the attempted robbery, so at the latest it was at the outset of the attempted robbery that the 2nd Respondent must have known that a firearm of some sort was to be used.

8. Taking into consideration all the circumstances of the case, we would think that a sentence of about eleven years would be appropriate. Since this is a review, it is customary for this Court not to impose a sentence normally given in a trial, but to give a sentence that is somewhat lower. We would therefore alter the sentence of five years to one of nine years in respect of each of the three Respondents.

Representation:

Mr. M.K. Ricketts (Legal Department) for Applicant.

Mr. A.B.B. Wahab (D.L.A.) for D2 and D3.

Mr. Crespulo Rubi (D4), Respondent in person.