The Queen v. Yau Kwok Tung

IN THE COURT OF APPEAL

1987 No. 17
(Criminal)

BETWEEN

THE QUEEN

AND

YAU KWOK-TUNG

__________________

Coram: Robert, C.J., Yang, J.A. & Silke, J.A.

Date: 11^th March, 1987

__________________

JUDGMENT

__________________

Roberts, C.J.-

1. This is an application for leave to appeal against sentence by YAU Kwok-tung, who pleaded not guilty to three charges of robbery and one giving false information to a pawnbroker. After trial he was acquitted of robbery on the first two charges and convicted instead of handling stolen goods, and convicted of the third charge of robbery.

2. He was sentenced to two years imprisonment concurrent on each of convictions for handling stolen goods and to four years’ imprisonment, consecutive to the two years’ sentences on the robbery charge, that is to say, to a total of six years’ imprisonment.

3. So far as the first and second charges are concerned, the applicant attempted to pawn the proceeds of two robberies, which took place on 25^th May and 8^th June, later in the same day on which the robberies occurred.

4. The third charge of robbery related to incidents which took place in the early hours of the morning of 23^rd June, when Mr. Lee and his wife were approached by the applicant and another man, who demanded to see their identity cards, which were handed over. The husband was searched and $300 were taken from him. One of the robbers snatched a necklace from the wife’s neck, but returned it when told it was a fake.

5. The victims said, and this was accepted by the Judge, that during the robbery it was the defendant who did most of the talking and that the wife was very frightened.

6. Mr. King, on behalf of the applicant, advanced a number of criticisms of the sentences passed by the District Judge. In relation to the conviction for robbery, he submitted that a sentence of four years imprisonment is manifestly excessive, bearing in mind the fact that the tariff prescribed in R. v. MO Kwong-sang[1] for robbery, where weapons are used or displayed, starts at five years. In this instance, he said, no violence was used although the victims were put in fear.

7. He drew our attention to Crim. App. 399/86, in which another division of this Court reduced a sentence of three years’ imprisonment to eighteen months, in respect of a robbery in circumstances which bear some similarity to those of this case.

8. In that instance, however, the applicant, whose sentence was reduced, was aged 22 years and had no previous record. In this case, the applicant is aged 27, and has a previous conviction for loitering, for which he was given a suspended sentence of imprisonment. In addition, a Drug Addiction Treatment Centre Order was passed on him last July, for possession of dangerous drugs for the purpose of unlawful trafficking.

9. In Crim. App. 399/86 the Court may well also have been influenced by the fact that the two co-accused of the man whose sentence was reduced, were both sent to a Training Centre. In any event, that division of the Court did not seek to lay down a tariff for street robberies where, although the victims were frightened, no weapons were used or shown.

10. A sentence of four years, in the circumstances of this case, is at the top end of the tariff for robberies where weapons are not displayed. Nevertheless, the offence took place at night, the victims were frightened and we do not regard it as so manifestly excessive that it would be proper for us to interfere with it.

11. Nor do we see anything wrong with the sentences for handling stolen goods. These are very much in line with the sentences that are commonly passed for these offences.

12. The earlier transactions, relating to the handling of stolen goods took place about 2 and 4 weeks before the robbery and were totally unconnected with it. We see no reason why a Judge should not, in such circumstances, order sentences to run consecutively.

13. Mr. King also suggested to us that the Judge ought to have been influenced, in deciding the proper sentence, by the fact that the applicant had been sent to a Drug Addiction Treatment Centre in July. Such treatment, he argued, might make it less likely that the appellant would, in the future, commit offences in order to obtain money to buy drugs.

14. It is to be hoped that he has benefited from the treatment which he has received, but it has never been regarded as a mitigating factor in these Courts that the purpose of a robbery was to secure money with which to buy dangerous drugs.

15. We can see no reason for interfering with the sentences passed and the applications must, therefore, be dismissed.

Mr. A. King (D.L.A.) for Appellant.

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

[1]  [1981] H.K.L.R. 610