Tam Shu-wing v. The Queen

CACC000669/1982

BETWEEN

_________

Coram: Huggins, V.-P., Silke & Barker, JJ.A.

Date: 1 October 1982

__________

JUDGMENT

__________

Barker, J.A.:

1. In this appeal, TAM Shu-wing appeals against his sentence of six years' imprisonment imposed on him on the 12th July 1982 at the Kowloon District Court.

2. The facts of the case were distressingly simple and common. In June of this year, he went into a lift, the accused then prevented the door from closing and pointed a 6-inch knife at the victim and took over $50 from her purse. He then allowed the victim and the boy who was in the lift to leave it, and the boy with commendable presence of mind went downstairs pointed out the accused to the caretaker who followed him until the caretaker saw police officers and the accused was arrested.

3. The accused has a number of previous convictions and this is a matter which has to be borne in mind when one is considering whether or not the sentence of six years which the learned district judge passed upon the accused is the correct one.

4. In the case of MO Kwong-sang⁽1), the Chief Justice said at page 2:

"We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate."

And the Chief Justice added later:

"These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea guilty."

5. This was a case in which the appellant did plead guilty. It may be said that, he had little alternative, but to do that since he was caught virtually red-handed. Nevertheless, he did save the time and trouble of the court and should be given credit for that. We bear in mind his previous record. Nevertheless, We are of the view that the sentence must be varied. We shall set aside the sentence of six years' imprisonment and substitute, therefore, a sentence of five years' imprisonment. The appeal is, therefore, allowed.

(1)    Criminal Appeal No. 359 of 1981 I

Representation:

Mackay (D.L.A.) assigned for Appellant.

Moorfoot, for Crown/Respondent.