The Queen v. Chu Cham Wing and Others

IN THE COURT OF APPEAL

1986 No. 586
(Criminal)

BETWEEN

THE QUEEN

And

CHU CHAM-WING (D1)

LEE SIU-WING (D2)

LEE PUI-SHUN (D4)

Coram: Roberts, C.J., Yang & Silke, JJ.A

Date : 11^th March, 1987

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JUDGMENT

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Roberts, C.J.

1. The two applicants, who were the first and second defendants at the trial, pleaded guilty to five counts of robbery and one count of possession of an imitation firearm.

2. The first applicant was sentenced to 7 years imprisonment on each of the five counts of robbery and to 6 months imprisonment for possession of an imitation firearm, the latte sentence to run consecutively to the others, giving a total of 7½ years.

3. The second applicant was sentenced to 14½ years imprisonment on each of the five robbery counts, the sentences to run concurrently, with a consecutive sentence of 6 months for possession of an imitation firearm, giving a total of 15 years imprisonment.

4. It is to be noted, for the purposes of comparison only at this stage, that the fourth defendant, to whom we granted an adjournment so that he could obtain legal representation, was convicted of the same robbery counts after a trial, and was sentenced to 16 years imprisonment on earch count, the sentence to run concurrently.

5. The robberies to which the two applicants pleaded guilty were carried out by a group of masked men. There was evidence that each robbery was carefully planned and that on each occasion one of the group was carrying a revolver, though it was never used. Others carried imitation firearms which were pointed at the staff, who were told not to move.

6. The first of the five robberies took place on 30^th December, 1985 at Dor Fook Gold Shop in Kowloon. The other four robberies all took place on 25^th January 1986, when four jewellery and watch company stores in Kowloon were ransacked by the group.

7. In the course of these five robberies, gold and other valuables worth approximately $1½ M. were taken. So this was a series of robberies, carried out by a determined group, who could reasonably be described as “professional robbers”. What can be said to their credit is that no violence was used.

8. The Judge sentenced the fourth defendant, whose appeal has not been dealt with to-day, to 16 years imprisonment on each of the five robberies. Assuming that these are proper sentences, it is necessary to look at the difference between them and the sentence which were imposed on the two applicants.

9. The Judge allowed the first applicant, what he described as a 50% discount on the sentence which he would otherwise have imposed, because of the assistance which the first applicant had given to the police, because of his early plea of guilty and, most of all, because after pleading guilty he had given, at considerable personal risk, damning evidence against the other defendants who had taken part in the robberies. And, indeed, his evidence was clearly the main reason why the fourth defendant was convicted.

10. However, he appears to have arrived at a figure of seven years by a process which seems to have been in error in one respect.

11. Accepting the sentence of 16 years imprisonment as a proper one, after a plea of not guilty, the 50% deduction should have been made from the 16 years. The Judge appears, however, to have first reduced the 16 years to 14 years for a plea of guilty and then taken 50% off the 14 years. There was thus a double discount. What the Judge should have done was to reduce by 50% the proper sentence which should be imposed after a plea of not guilty.

12. If this process had been applied to the first applicant’s sentence, he would have received 8 years imprisonment on each count, rather than 7. However, we do not regard the sentences as being so inadequate that we should interfere with them in this respect.

13. It was argued on behalf of the first applicant that the 6 months imprisonment for possession of an imitation firearm should not have been made consecutive to the main sentence.

14. On other occasions, this Court has said that it is a matter for the discretion of the Judge as to whether he imposes a consecutive sentence for possession of an imitation or a real firearm, or whether he makes such a sentence run concurrently with the sentence for the principal offence.

15. In this case, the Judge decided to make them consecutive and we no reason to interfere with his discretion.

16. The second applicant pleaded guilty on the second day of the trial and was later called by the prosecution to give evidence. In the course of it, he attempted to exculpate the fourth defendant and to discredit the evidence which had been given by the first applicant.

17. The Judge, when assessing the second applicant’s sentence, took this into account, in our view correctly, and gave him no allowance for the fact that he had given evidence, though he did allow a discount for his plea of guilty, belated though it was, by reducing what would otherwise have been a sentence of 16 years to one of 14½.

18. He also made the sentence of 6 months for possession of an imitation firearm run consecutively.

19. These sentences seem to us to be proper ones and both applications for leave to appeal against sentence are dismissed.

Mr. G. Alderdice (C.K. Mok & Co.) for D.1

D.2 LEE Siu-wing – in person

D.4 Lee Pui-shun – in person

Mr. I.G. Cross, Ag. Sen. Asst. Crown Prosecutor for Respondent/Crown Prosecutor.