Yu Yau-ki v. The Queen

CACC001156/1981

BETWEEN

_______

Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date: 13 May 1982

___________

JUDGMENT

___________

Sir Alan Huggins, V.-P. :

1. This Appellant was convicted on two charges of robbery and one of burglary. On the two robbery charges he was sentenced to 5 1/2 years and 7 years' imprisonment respectively and for the burglary to 3 1/2 years. He originally appealed against his sentence on all three charges but he has now abandoned the appeal in relation to the two shorter sentences.

2. The learned judge came to the conclusion that this Appellant was playing a substantial part in the third robbery and expressly said that he wiped away fingerprint impressions left by the robbers in the premises. We have now had a transcript made of the evidence of the only witness who gave evidence of the wiping of fingerprints and we are satisfied that this Appellant was not identified as the person who did that. The learned single judge apparently accepted at face value the reasons for sentence given by the trial judge and, the single judge not having a full transcript of the evidence in legible form, it is perhaps not surprising that he came to that conclusion. The Appellant has also complained that another co-defendant was sentenced, as he said, to five years' imprisonment - but in fact to three years' - for this particular offence. The co-defendant was a very young man (aged only just 17) and we can understand the trial judge's anxiety not to make a First sentence of imprisonment a long one. However, in all the circumstances we have come to the conclusion that a sentence of seven years' imprisonment on this particular Appellant, who according to the evidence played only a very minor role in the robbery, was not justified. We therefore give leave to appeal, allow the appeal and substitute on the third charge a sentence of 5 1/2 years imprisonment. That means that it is equal to one of the sentences against which the appeal has been abandoned and the Appellant will serve 5 1/2 years' imprisonment.

13th May 1982