The Queen v. Lau Wai-lun

CACC001172/1982

BETWEEN

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

Date: 26th April 1983

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JUDGMENT

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1. This is an application for leave to appeal against sentence. The applicant originally applied also for leave to appeal against conviction which has now been abandoned.

2. The applicant was convicted of the offence of robbery and was sentenced to 12 years imprisonment on the 19th November last year. The indictment alleged that on the 31st October 1979 he with one Luk To-yuen and others, unknown, robbed one person Wong Man-chiu of the money set out in the indictment.

3. The evidence in support of the charge was that a robbery occurred on that day in the Hong Kong Industrial Commercial Bank in Nathan Road. Three robbers carried pistols. They took nearly HK$1.7 m., over $3 m., US$1,000 and 2,000. It was not disputed that the applicant visa not present at the time of the robbery. However, he could be described an accessary before the fact and an accessary after the fact.

4. Luk To-yuen was minded to rob the bank in which he, Luk, was employed. He approached the applicant who assisted him to find people willing to help Luk. He found two for Luk. As a result Luk and the other two succeeded in carrying out this robbery. After their venture the robbers returned to the applicant's flat where they divided the spoil. Then Luk absconded as did the applicant himself who went to Mainland China and subsequently Macau.

5. In January 1980, information led the police officers to the home of the applicant in Mei Foo Sun Chuen where they seized, amongst other things, $154 in $1 US bank notes which was subsequently identified (and subsequently admitted by the applicant himself) as part of the proceeds of the robbery.

6. On the 17th April the applicant was picked. up off the shore of Hei Ling Chau Island. He was first suspected of being an illegal immigrant , then as an organiser for illegal immigrants. Subsequent investigation revealed that he was in fact one of the wanted men for the robbery. He frankly admitted. that he was the person who introduced the robbers to rob with Luk To-yuen. The only material ground in support of his application was that the sentence of 12 years was manifestly excessive. It is argued that having regard to the year in which this offence took place 12 years imprisonment is excessive. That was before the guideline for sentence in robbery cases was given in the case of Mo Kong-sang.

7. We do not by any means say that the guideline in the 'Mo' case is inflexible and unchangeable. Tariff sentences provided by that case may be inadequate today. However this is a case that occurred before the guideline was given.

8. We feel that having regard. to the then current tariff sentences, even if the applicant had participated in person in that robbery probably he would have received a sentence between 10 to 12 years in 1979. We also take into consideration of this rather bizarre happening that while the applicant was in China he was prepared to make a frank disclosure as to the part he took in this robbery. As he was not a principal of the first degree in that crime in 1979 probably he would have received a couple of years less than the actual robbers themselves. That being the case we feel that we are able to intervene. A sentence imposed for an offence should be in line with similar offences at the time it was committed. Accordingly we grant leave to appeal against sentence, treat the application as the appeal proper, quash the sentence of 12 years and substitute therefor a sentence of 8 years imprisonment.

Representation:

A. W. Sedgwick ( H. M. So & Co. ) for Appellant

James O'Grady for Responent/Crown

Accessory to Robbery in 1979 - convicted in 1982 and sentenced to 12 years imprisonment.

Held:

A sentence imposed for an offence should be in line with similar offences at the time it was committed. Having regard to the tariff sentences of similar offences in 1979 even if applicant had taken part in the actual robbery he would have received a sentence of 10-12 years after a full trial. Giving allowance for his P.G. and frank admission as well the sentence of 12 years is reduced to one of 8 years.