The Queen v. Wong Ping Yu and Another

IN THE COURT OF APPEAL

1987 No.16
(Criminal)

BETWEEN

THE QUEEN

AND

WONG PING-YU

WONG PING-FAI

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

Date : 12^th March, 1987

________________

JUDGMENT

________________

Roberts, C.J.

1. The two applicants for leave to appeal against sentence were the sixth (“D.6”) and seventh (“D.7”) defendants at the trial.

2. D.6 pleaded guilty to three counts of robbery, for which he was sentenced to 18, 20 and 20 years respectively, all sentences to run concurrently.

3. D.7 pleaded guilty to five counts of robbery, three of them being the same as those to which D.6 pleaded the other two being additional counts.

4. All offences were part of the activities of a gang of professional robbers whose activity, according to these counts alone, extended between the months of January and July, 1986.

5. Each of the three counts to which both the defendants pleaded guilty, consisted of an invasion of a goldsmith’s shop by a group of masked men, some of whom carried firearms. In one of these robberies, a member of the staff of the goldsmith shop was shot in the stomach by one of the robbers. Fortunately, his injuries were not serious, but little credit for that can go to those who took part in this raid.

6. D.7, in addition, pleaded guilty to two further counts in both of which sots were fired, one of them at a police constable and the other as a warning shot.

7. The robbers’ haul amounted to somewhat over $600.000 worth of jewellery and ornaments in the first three counts and to an additional $800,000 worth in the two extra counts to which D.7 only pleaded guilty.

8. The Judge imposed a total sentence of 20 years on D.6 and 23 years on d.7 and it seems to us that he was correct to make a distinction between the total sentence imposed for three robberies as opposed to the total sentence for five, assuming that all the robberies were more or less of the same description.

9. When considering the appropriate sentence which should be imposed, the Judge relied heavily on the case of R. v. IP Tin Yan[1], which is a decision of this Court. He quoted IP as being authority for the proposition that 15 years is the minimum sentence to be imposed where a single offence only is in question and there was a robbery involving the use of firearms.

10. He also extracted from that case the principle that, in grave cases of robbery involving multiple offences, the range should be 20 to 30 years.

11. It is, in our view, a reasonable interpretation of a passage in Ip’s Case in which Mr. Justice MuMullin said –

“Applying the Turner principles to the present case we think that the judge’s starting point of 33 years – suitable in a case of abnormal character in the sense we have indicated – was manifestly too high. The range of 20 to 30 years would we think, have been appropriate in view of the aggravating features of the case including, notably, the multiplicity of offences and the use of the gun at the final shoot-out at 261 King’s Road.

12. There are certainly aggravating factors present in the string of offences to which these defendants have pleaded guilty. In relation to what I might call the “joint charges”, that is to say the three to which they both pleaded, pistols were carried on each occasion, and in the case of the third of these charges, a member of the staff of the shop was shot.

13. So far as D.7 is concerned, shots were fired in both of the additional counts to which he pleaded.

14. The Judge did not, however, when passing sentence, indicate the starting point from which he made deductions for the early pleas of guilty of the defendants. It is clear that he has regarded it as open to him to regard these offences in the aggregate as falling within a bracket of 20 to 30 years, but has not stated where in that bracket he began his calculations, or what discount he has given.

15. We can, perhaps, infer from his reference to “three years being allowed” as a discount for a plea of guilty in Ip’s Case¹, that that was the allowance which he himself gave to both the defendants. If that is so, his starting point would have been 23 years for D.6, and 26 years for D.7.

16. These are high starting points, but we cannot say that we feel, in view of the history of these offences, that they were so manifestly excessive that we should interfere with them.

17. Before passing to the question of whether or not an appropriate discount was allowed by the Judge, we would like to commend to Judges and Magistrates the practice, which is generally, though not universally, followed, of indicating the degree of discount which is allowed following a plea of guilty. As Mr. Rodway has said, this is not only fair to defendants but is of considerable assistance to legal advisers.

18. Turning now to the appropriate discount. If our reasoning is correct, and a discount of three years has been allowed on a sentence of 26 years, this appears to us to be far too low in the circumstances of this case. It is common for discounts of up to a fifth to be allowed in serious cases if there is a plea on the first morning of trial. In this instance, there was a plea at the earliest practical stage, that is to say, when the defendants appeared before the Magistrate, as a result of which they were merely committed to the High Court for sentence.

19. This is a practice which is to be encouraged in the public interest, and we feel that it should be recognized by a greater discount than a plea on the first morning of a trial some weeks later would justify.

20. We think that an appropriate discount would have been approximately 25%. Applying that, in round figures, to what we conceive to have been the Judge’s starting points, we would reduce the total sentence on D.6 from 20 years to 17 years and the total sentence on D.7 from 23 to 19 years. It is, after all, at this end of the level of sentences the totality that matters, so we will apply the same sentence to each of the counts to which the two defendants pleaded guilty. We substitute sentences of 17 years concurrent on each of the three counts to which D.6 pleaded guilty and 19 years, concurrent, on each of the five counts to which D.7 pleaded guilty.

21. The applications for leave to appeal against sentence are therefore allowed and the sentences varied to this extent.

Mr. G. Rodway, Q.C. with Mr. E. Lin (Tang & Knight) for Appellants

Mr. A.A. Bruce, Sen. Crown Counsel, for Respondent/Crown Prosecutor.

[1]  Crim. App. 1109/82