Read the full judgment text of CACC 000454/1994 on BabelCite. This Court of Appeal judgment was delivered on 28 February 1995 before Yang CJ, Macdougall VP, Liu JA.
Criminal law – robbery – possession of imitation firearm – sentencing – appeal – starting point – totality principle – consecutive versus concurrent sentences – policy guidance on use of firearms in robbery – police officer as offender – out-of-character conduct – mitigating circumstances. The applicant, a serving police officer of 20 years' standing, was convicted after jury trial before Leonard J of robbery and of possession of an imitation firearm at the time of committing a robbery, and was sentenced to concurrent terms of 10 and 5 years' imprisonment. On 21 January 1993, immediately prior to the lunar new year, the applicant observed a Miss Chan withdrawing money from a bank in Kwai Chung, followed her through the lobby of Kam Tak industrial building, threatened her with an imitation pistol, and took her bag. Miss Chan threw the bag to the ground; the applicant picked it up and ran. When she pursued him, he panicked, dropped the bag and the firearm, and attempted to escape but was quickly caught and pinned to the ground. In his cautioned statement, he admitted the facts and gave as his reason that he had no money for lunar new year or his daughter's school fees. The trial judge took into account the absence of aggravating features, no injury, the vulnerability of bank customers, and the applicant's 20 years' police service, adopted a starting point of 12 years for the robbery, reduced to 10 years, and imposed a concurrent 5 years for the firearm offence. Whether the starting point of 12 years for the robbery count was manifestly excessive – Yes; the appropriate starting point for robbery by a sole robber using an imitation firearm in a public place who inflicts no injury is 10 years after trial, comprising 5 years for the robbery (akin to a robbery with a knife or other dangerous weapon per Mo Kwong-sang v. R. [1981] HKLR 610) and 5 years for the separate offence of carrying an imitation firearm with intent to commit an arrestable offence (per R. v. Lam Wing-kwong, Application for Review No. 6 of 1993, unreported). Whether the sentences should be concurrent or consecutive – Consecutive; the Court of Appeal substituted consecutive sentences of 5 and 3½ years, applying the totality principle and giving weight to the applicant's 20 years' unblemished police service and the fact that he had acted completely out of character, yielding an overall sentence of 8½ years (down from the effective 10 years originally imposed). Whether policy considerations require a sentencing distinction between genuine and imitation firearms in robbery – No distinction should be drawn in bank, jewellery shop, goldsmith shop, security van or payroll robberies, and the like, where no firearm is discharged, because of the risk that police or security guards arriving at the scene may open fire and injure bystanders in split-second decisions; a further distinction should be preserved between such high-stakes robberies and robberies carried out by a sole robber in a public place, the latter warranting considerably lower sentences. Outcome – Application for leave to appeal against sentence granted; appeal allowed; original sentences set aside and substituted with consecutive terms of 5 years' imprisonment for robbery and 3½ years' imprisonment for possession of an imitation firearm with intent to commit an arrestable offence, giving an overall sentence of 8½ years' imprisonment.
Legal issues: Sentencing distinction between genuine and imitation firearms in robbery · Whether 12-year starting point for robbery was manifestly excessive · Substituted sentence and structure on appeal
Outcome: Appeal against sentence allowed; original sentences set aside and substituted with consecutive terms of 5 years (robbery) and 3½ years (possession of an imitation firearm with intent to commit an arrestable offence), giving an overall sentence of 8½ years' imprisonment
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