The Queen v. Lo Man-choi

CACC000073/1984

[Tariff for Robbery.]

BETWEEN:

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

Date: 3rd May, 1984.

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JUDGMENT

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Roberts, C.J. -

1. The defendant, LO Man-choi, sought leave to appeal against his sentence out of time. The only ground which he put forward was that he did not understand the law and that he did not seek leave to appeal against sentence at the same time as he sought leave to appeal against conviction because he did not know that his time for doing so was limited.

2. We have said on a number of occasions that we do not grant leave to appeal against sentence out of time unless there are substantial grounds for doing so.  We therefore refused leave.

3. We think, however, that it may be useful to take this opportunity of reminding district judges of the way in which they should apply the-sentencing guidelines set out in MO Kwong-sang⁽¹⁾ to which the trial judge refers in his reasons for sentence.

4. In this case, the defendant and four other men entered a bath house at 4 o'clock in the morning. After taking advantage of the services offered they threatened the staff with melon knives, tied them up, ransacked the bath-house and stole a substantial quantity in cash and some personal property.

5. The judge, referring to MO Kwong-sang⁽¹⁾, says that, following the guidelines in that case, the appropriate sentence "should range between five and six years", which he reduced to five taking "nominal account" of the clear record of the defendant.

6. A reading of MO⁽¹⁾, however, suggests that a higher sentence would have been appropriate. According to the guidelines in MO⁽¹⁾, where there is an armed robbery, in which one or more of the defendants is carrying a knife or other dangerous weapon (though not firearms) and the weapon is displayed, the starting point is five years.

7. If the robbery involves an invasion of private premises, as this did, a sentence of six years would be appropriate.

8. If physical violence, including their tying up is used on any of the victims, seven years should be considered.

9. The court in MO⁽¹⁾ added that these sentences should be increased if there were other aggravating factors, among these were an invasion of domestic premises during the night, the presence of more than one person in the group of robbers, threats to victims and ill-treatment, and so on.

10. In this case there was a gang and the offence took place in the small house of the morning. These factors, in our view, should have  increased the appropriate sentence to one of about nine years' imprisonment.

11. The only factor to be taken in the defendant's favour was that he had a clear record.

12. He was also convicted of possession of offensive weapons, namely a length of piping and two choppers, which were found on his premises when they were subsequently searched by the police and sentenced to six months' imprisonment, this to run consecutively to the sentence on the first charge of robbery.

13. In our view, therefore, the appropriate total sentence for these two offences should have been about nine years. Since the maximum sentence which can be imposed by a district judge is seven years, that is the term which he should have imposed.

14. We should perhaps add, to remove any doubts, that the MO⁽¹⁾ tariff is intended to apply to a conviction following a plea of not guilty. Had there been a plea of guilty in this case, in circumstances justifying a  substantial discount for this reason, we would have suggested seven years.

15. The applicant may think himself fortunate that we refused his application for leave to appeal against sentence out of time.

Representation:

Applicant in person.

J.P. McNamara, Senior Crown Counsel, for Crown.