Lee Kwong Lam and Others v. The Queen

CACC000828/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 828 OF 1973

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 12th December 1973.

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JUDGMENT

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Huggins, J.:

1. On 10th April 1973 there was a robbery at a branch of the First National City Bank. The four Appellants burst into the bank and stole over $80,000 in Hong Kong currency together with nearly $1,000 of United States currency. The first Appellant was carrying a .38 colt revolver, with which he threatened the staff and the customers of the bank. The second Appellant climbed over the counter and actually took the money from one of the cashiers. Those events were the subject of the first two counts of the indictment, one for robbery and one for possession of a fire-arm at the time of committing the offence of robbery. All the Appellants pleaded Guilty to those two offences. Subsequently the police found a .38 colt revolver in the possession of the fourth Appellant together with five rounds of ammunition for that revolver in a house in Kok Cheung Street, and another round of ammunition for that revolver in a house in Shanghai Street - also in the possession of the fourth Appellant. The fourth Appellant pleaded Guilty to three additional counts in respect of the gun and the ammunition. It is believed that the weapon found in the fourth Appellant's possession was the one which had been used by the first Appellant for this robbery and it had been stolen from a police officer in Macau, though we, of course, are not in any way concerned with the robbery in Macau.

2. The learned judge sentenced the first Appellant to ten years' imprisonment concurrent on each of the first two counts. The first Appellant is 21 years of age. The second and third Appellants, who are each 18 years of age, each received 8 years' imprisonment concurrent on each of the first two counts. The fourth Appellant, who is 26 years of age, was sentenced to 9 years' imprisonment on the first two counts, one year's imprisonment consecutive on the third count, of possession of the revolver and one year's imprisonment concurrent on each of the other two counts.

3. The Appellants all ask us to reduce the sentences because they say the sentences were very heavy. The second Appellant says that it will affect his future if he remains in prison to serve his full sentences, as, indeed, it may well do, but that is something which should have been thought of before the Appellants embarked upon this escapade. It has been emphasised that the Appellants have all been in prison for eight months since their arrest. That is something to which the learned Chief Justice specifically referred when passing sentence but which, in any event, is taken care of by the Legislature, for s.67A of the Criminal Procedure Ordinance expressly directs the Commissioner of Prisons to take account of certain periods spent in custody. As we said only this week in another case, we therefore have to disregard the periods spent in custody for the purposes of the sentence. Counsel for the Crown has drawn our attention to a number of recent cases of robbery and it is fair to say that the normal sentence there, even where there has been a gun used, has been in the region of eight years' imprisonment, but we do not have the ages of the accused in those cases. So far as the second and third Appellants are concerned the sentences in the present case are in line with the norm. The sentences on the two older Appellants, who actually handled the gun, have been increased to ten years.

4. There is no doubt that these are very heavy sentences and that they will have a serious effect on the lives of the youngest of these Appellants, but people have ...(illegible) to realise that this sort of conduct cannot be tolerated and, heavy as the sentences are, we cannot say that they are in any way wrong in principle or manifestly excessive.

5. The applications of all the Appellants for leave to appeal against sentence are dismissed.

12th December 1973.

Representation: