Lui Tat Shing and Another v. The Queen
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CACC000657/1979
----------------- Coram: Roberts, C.J., Leonard and Li, JJ. Date of Judgment: 6 December 1979 ----------------- JUDGMENT ----------------- Roberts, C.J.: Introduction 1. Originally, these were appeals against both conviction and sentence by LUI Tat-shing and LI Siu-ming. However, both appellants abandoned their applications for leave to appeal against conviction at the outset of the hearing before us and we formally permitted them to do so. We were therefore concerned only with their applications for leave to appeal against their sentences. 2. The first appellant received concurrent sentences of six years for attempted robbery and one year for possession of an offensive weapon in a public place. The second appellant was sentenced to 4½ years for attempted robbery. Facts 3. The attempted robbery occurred on January 20th this year at the Ying Wah Goldsmith and Money Exchange Shop in Kowloon. It was a planned and determined expedition, in which five persons took part. A stolen car was used by them; at least four of them were armed in various ways. The driver of the car had a knife, the first appellant had a chopper, one of the others had an axe and one of them was armed with a revolver. 4. Due to the courage and good sense of the owners of the shop, the robbery was foiled in its early stages. When four of the men (the driver stayed in the car) entered the shop and announced that it was a robbery, one of the owners picked up a chair, struck one of the intruders on the head and sounded the alarm. The intruders lost their nerve and ran from the shop, pursued by one of the owners shouting robbery. Police officers in a car in the vicinity heard the alarm, and saw the robbers running away from the shop. The police followed them and saw them getting into a car. The police called on them to stop and there was an exchange of shots before the robbers drove away. A chase then ensued through Kowloon, until the robbers' car crashed. The robbers got out of the car and attempted to evade the police. One of them attacked one of the police officers with a knife but fled when the officer fired a shot. Three of the five managed to evade the arrest, but the two appellants were captured by the police. First appellant 5. It is clear that he took a very active part in the expedition. He was found in possession of the chopper after the chase, on his arrest by the police. Witnesses present in the shop testified that one of the robbers attempted to draw a chopper of the same kind from his waistband. This must have been the first appellant. Although he has a clear record, we have repeatedly made it clear that this carries little weight in cases of robbery, or attempted robbery, where those responsible are armed with dangerous weapons, whether such robbery takes place in domestic premises, or a bank or a jeweller's shop. A sentence of six years' imprisonment for somebody with no previous record is a heavy one but we cannot say that we regard it as excessive, in the case of a man of 25, in the absence of special mitigating factors and there are none in this case. Second appellant 6. There is no evidence that he was armed. At the time of the offence he was aged approximately 18 years and 8 months. He had only been in Hong Kong for six months, though we cannot give any credence to the suggestion that he did not know the conduct of this nature was against the law. We cannot believe that there is any country in the world which would permit armed expeditions into jeweller's shops. 7. A sentence of 4 1/2 years, however, is a very heavy one for a youth aged 18. The Commissioner of Prisons, in his report, recommended a "rehabilitative programme", which we interpret as a recommendation for the reception of this appellant in a Training Centre. This youth has been in prison, albeit in remand or as an appellant, for ten months. Perhaps this may, as we hope it will, act as a deterrent to unlawful conduct by him in future. Not without hesitation, we have decided to quash the sentence of 4 1/2 years' imprisonment and substitute instead a training centre order. 8. We should make it clear that we do this only because of the accused's age and because the evidence suggests that his part in the expedition was a relatively minor one. Representation: Mrs. Jackson-Lipkin (D.L.A.) for both appellants White for the Crown/Respondent. |