Wong Kwok-hung v. The Queen

CACC000524/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 524 OF 1972

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Coram: Rigby, C.J., McMullin and Leonard, JJ.

Date of Judgment: 14th August, 1972.

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JUDGMENT

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Rigby, C.J.:

1. The appellant, who is 22 years of age, was jointly indicted with his younger brother, aged 16, upon charges preferred against them of bank robbery and, in so far as the present appellant is concerned, an additional charge of possession of an imitation firearm, to wit, a starting pistol.

2. It is to be said that before the examining magistrate both appellants admitted the commission of these offences. However, in view of the seriousness of the charges they were, in our view entirely properly, committed to the Supreme Court to be dealt with on the matter of sentence. When the case came before the Supreme Court both the appellant and his younger brother maintained their pleas of guilty to the charges preferred against them.

3. The brief facts of the case were that at about 7 p.m. on the 7th of April the appellant and his younger brother entered the premises of the Far East Bank, Ltd., the Yaumati Branch. The Bank premises were fairly crowded at that time. The appellant was armed with a starting pistol, and his younger brother with a knife. The younger brother kept guard near the main entrance of the bank, which is on the ground floor, and the elder brother, the appellant, threatened the members of the staff of the bank, and members of the public in the bank, with the pistol. He then extracted a large quantity of bank-notes and travellers' cheques from a drawer of one of the counters, stuffed them into a plastic bag, and he then decamped from the premises. The younger brother was rather slower in leaving the premises and he was chased and apprehended. The appellant, who at that time was living with a female in premises separate from his parents, was subsequently apprehended later that same day.

4. The total amount of money stolen, $103,135 in Hong Kong Currency, and a quantity of travellers' cheques to the value of $7,400 in U.S. Currency, were recovered.

5. The appellant has no previous convictions. A number of factors were put before the learned trial judge in mitigation and it is quite clear that the learned trial judge gave the most careful and anxious consideration to this case. He adjourned it to the afternoon and when the matter then came before him he imposed a sentence of five years' imprisonment, giving at the time a careful and reasoned decision as to why he did so. In so far as the younger brother was concerned he placed him on probation for a period of two years.

6. The appellant now applies for leave to appeal against that sentence of five years' imprisonment on the ground that it is too severe. Mr. Patrick YU has appeared for the appellant, and we are indebted to him for all he has urged upon us. He appeared also before the learned trial judge and it is clear from the record that much, indeed practically all, of what Mr. Patrick YU has said to us was in fact said by him to the trial judge. Mr. YU has criticised two statements made by the trial judge in the course of his decision before passing sentence. The trial judge stated that this offence was "carefully planned", and he further said that the starting pistol, which was in the possession of the appellant, might, if discharged, have wounded one or more of the occupants of the bank. Mr. YU has said, and it would appear to be supported by what was said in the lower court, that on the day in question the younger brother of the appellant did go and see the appellant, that the appellant was considerably depressed at the time, that he was in financial difficulties, and that the plan, if one may call it a plan, to raid the bank was conceived on the spur of the moment. Furthermore, he has pointed out that on the evidence it would seem apparent that the starting pistol was in fact unloaded when in the possession of the appellant in the Bank.

7. There was evidence before the trial judge, and Mr. Yu has referred to it, that the appellant in his youth was a problem child. The parents had difficulties with him. It appears that he was given to lies and petty theft, and generally bad behaviour, and he was sent by his parents to the Child Guidance Centre for treatment.

8. The parents are entirely respectable persons and no doubt - indeed, as the trial judge pointed out - this catastrophe occurring to their children must have been a great tragedy to them.

9. Mr. Patrick YU has urged upon us that this was not a case of two young thugs of evil reputation but a young man with a history of instability, who was hero-worshipped by his younger brother, in a moment of deep depression making up his mind on the spur of the moment to commit this offence. We accept what Mr. Patrick YU has said. But the fact remains that however one looks at this case, it was an extremely serious case. Offences of this kind, bank robberies, have unhappily been prevalent in Hong Kong for at least the past two years. It is correct to say that the average sentence imposed for Bank robberies, particularly where firearms, even imitation firearms, are involved, range from 8 to 10 years. The sentence imposed in this case was considerably less than the usual sentence imposed. We accept that it was an exceptional case carried out by a young man who certainly cannot be described as an ordinary, run-of-the-mill young hooligan. But be that as it may, we would emphasize the seriousness of this type of case and we do not think, in all the circumstances, that this sentence is one with which we ought to interfere. The application for leave to appeal against sentence is accordingly dismissed. The sentence will run as from the 17th of May, 1972, that being the date the appellant admitted these facts when he came before the examining magistrate.

Representation:

P. Yu (J.S. & Master) for Appellant.

Duffy, C.C. for Crown/Respondent.

(Judgment delivered by President)