Tam Wai-foo v. The Queen

CACC000835/1982

Sentence: Robbery: guns carried and used: planned: three involved: appellant pleaded guilty, cooperative with police, clear record, aged 21: 16 years totality upheld.

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 7 December 1982

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JUDGMENT

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Silke, J.A.:

1. The appellant, TAM Wai-foo, was convicted on the 18th August 1982 of four offences – the 1st, robbery on the 22nd February 1982; the 2nd, possession of arms at the time of commission of that offence; the 3rd, the use of a firearm with intent to resist arrest - the firearm being a 0.22 Beretta pistol - and the 4th, attempting to discharge the firearm.

2. A girl was in a boutique in Causeway Bay at about 5 o'clock in the afternoon of the 22nd February. When a customer left, the girl asked to be shown a trousers suit. At that time two men entered the premises. The girl came out of the fitting room, asked to buy only the top of the trousers suit and while the price was being worked out she put an arm around the neck of the salesgirl, told her it was a robbery, and started to take a necklace and a watch from her.

3. The two men each drew a gun and also informed the sales staff that it was a robbery.

4. The boutique girls were handcuffed and the shop ransacked to see if there was anything which could be taken.

5. Another employee, who was in a store room, put her head round the corner, saw what was happening and screamed. One of the men went to run after her the other suggested that they all run from the premises which they did, breaking a glass door in the process.

6. The handcuffed girls gave chase raising a hue and cry. Civic minded members of the public and an off duty police sergeant joined in the chase.

7. The appellant used his gun to fire one shot. That shot ricocheted and a splinter of the bullet struck an innocent bystander. In the course of a chase which went through Percival Street to the Lee Theatre and into a lane near the cinema, he attempted to fire on three further occasions in the general direction of the off duty sergeant. Fortunately the gun jammed.

8. He was subdued by the police sergeant with the aid of members of the public. The pistol was taken from him and in a brown handbag which he was carrying was found another pistol - a converted toy pistol loaded and capable of being fired.

9. The totality of the sentences he received is one of 16 years. The trial judge obviously approached the matter on that basis - giving him a sentence of ten years for the robbery, three years for having the gun in the course of the robbery, three years for using the firearm with intent to resist arrest and six years for the attempted usage - the 2nd, 3rd and 4th sentences running consecutively to the first.

10. The appellant pleaded guilty. At the time of the offence he was aged twenty one years and one month. He was cooperative with the police. He confessed fully to his crime and further assisted them in going to a factory where these guns were being manufactured or being converted and where a large number of toy guns capable of being converted were found.

11. In the reasons he gave for a sentence, the judge said:

"Now in these circumstances the individual points in mitigation obviously carry less weight, such as your youth and clear record and the fact that you cooperated with the police. I do, however, give some weight to your plea of guilty which has saved the time of the court. Oh the other hand, these are extremely serious offences. And so far as the police sergeant, you perhaps are fortunate not to be facing a much more serious charge."

12. Mr. Keane in the course of this appeal has laid emphasis on the youth of the appellant. He asks us to consider what would be the proper sentence for a man, say, of 35 with a bad record if a youth 21 gets the total of 16 years. He submits that we could consider reducing the sentences upon the appellant so that he would be released in his early thirties rather than in his late thirties and it is, as he says, a "crushing sentence" upon a youth of this age.

13. We are most conscious of the appellant's age and of his plea of guilty and of the fact that he did cooperate with the police.

14. But persons who carrying guns in the course of  robberies and who, in a public street in a crowded area of this colony -  there are very few areas that are not - fires those guns must expect to receive condign punishment.

15. This is the first offence of the appellant. Nevertheless this offence is of such a nature that those who would be minded to follow his example must be deterred from so doing and must fully appreciate the consequences of the acts if they do take this course.

16. We note that the place in which these offences took place - the Percival Street, Lee Gardens, Sharp Street area - is very busy and it was at 5:30 p.m.

17. Paying all attention to that which Mr. Keane has eloquently said on the appellant's behalf and being very conscious of his age, we do not feel that this is a case in which any reduction of sentence should be made. It is a very serious case. Without the guilty plea and the other mitigating factors a sentence well in excess of that imposed would not have been wrong.

18. The appeal is dismissed.

Representation:

D. Keane, Esq., Q.C. & G.A. Mackay, Esq., assigned by D.L.A. for the Appellant.

G.A. Andree-Wiltens, Esq. for Crown/Respondent.