Yu Chun-sing v. The Queen

CACC001023/1979

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Coram: Roberts, C.J., McMullin, J.A. & Leonard, J.

Date of Judgment: 18 January 1980

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JUDGMENT

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Leonard, J.:

1. The appellant seeks leave to appeal against sentences of six years and one year's imprisonment (consecutive) imposed upon him on his conviction of the offence of robbery and of offences of possession of arms and ammunition.

2. He pleaded guilty to the charge of robbery. The robbery was a serious one - a planned robbery of a wage packet from a security company. It had apparently been planned in the United States, where Raymond Hui, a half-brother of the appellant, Billy Fung (one of the robbers, who gave evidence for the Crown having been granted immunity) and the appellant were then residents. They had returned in order to carry it out. Knowing that an officer of the company would be carrying a large sum of money on a particular day they waylaid him as he got out of a lift and seized altogether $182,535.00.

3. At the time of the robbery, the appellant was armed with a spanner handle wrapped in paper and his fellow robber with a lever, partly of metal and partly of wood. The victims were not seriously injured but one suffered from bruising on the head and shoulder.

4. The appellant suffered from two serious medical conditions. He has a rheumatic heart disease, which manifests itself as a murmur of the heart and is at present relatively quiescent. He also suffered from systemic lupus erythematous. If carefully watched, these conditions can be kept under control. Both conditions are incurable and in the event of an attack he must have speedy medical attention.

5. It is clear that the appellant was not the mastermind behind the scheme for the robbery and that the robber who had given evidence on an indemnity had worked in the security company in question. The arms and ammunition, the subject of the second and third charges of which the appellant was found guilty after trial, were discovered immediately after the appellant's arrest in connection with the robbery in a money box which was also found to contain $13,000, part of the proceeds of the robbery. The arm in question was a starting pistol. The ammunition consisted of 4 rounds of live blank cartridges. The starting pistol, when used in conjunction with the blanks, was a relatively harmless weapon. If a missile were loaded into its muzzle and a live blank round of ammunition were fired the explosive force of the blank cartridge would discharge the missile with sufficient force to cause minor injury to anyone nearby.

6. Having regard to the manner in which the robbery was planned, the degree of participation of the appellant in it and the use of a blunt weapon against the person of the victim we cannot conclude, even giving due weight to the appellant's ill-health and accepting that he was not the brains behind the robbery, that the sentence of six years' imprisonment was manifestly excessive or wrong in principle.

7. As to the sentence of one year's imprisonment imposed for possession of the arms and ammunition, it is clear that these would not have been discovered but for the robbery. We are told that they had in fact belonged to the appellant's brother, who had died some years earlier. They were not used in the robbery but were in the box that contained the appellant's share in the proceeds of the robbery and were discovered by the police when they went to arrest this appellant. Although their possession was not connected with the robbery, nevertheless we consider from the history of their finding by the police and their relatively harmless nature that the sentence imposed in respect of their possession should have been made concurrent with that imposed for the robbery. We accordingly allow this appeal to the extent that the sentence of one year's imprisonment on the second and third charges should run concurrently with that imposed on the first charge.

Representation:

Ruy Barretto (Director of Legal Aid) for Appellant

R.N. Hawkes for Crown/Respondent