Hui Chau Hoi v. The Queen

CACC000991/1981

Sentence: Robbery. Exceptional course.

BETWEEN

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

Date: 7 May 1982

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JUDGMENT

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Silke, J.A. :

1. The appellant was convicted of three offences after trial : one of robbery, for which he received a sentence of six years' imprisonment; one of possession of imitation firearms for which he received a sentence of six months' imprisonment; both of those sentences to run concurrently; and one of possession of an offensive weapon for which he received six months' imprisonment to run consecutively, giving a total of six and one half years.

2. He was granted leave by the single judge in respect of the sentence on the third charge only and he appears before us by reason of that grant of leave. He has also renewed his application in respect of the sentence on the first charge. The reason for leave being granted was that the trial judge had said in passing that the possession of the offensive weapon occurred after the actual offence itself. This clearly appears to be an error for the facts were that two men had entered into a domestice premises, first of all on the pretext of selling video tapes and, having gained entry, then produced knives and what was described as a gun like object. The appellant himself had a knife. Persons were tied up including a child and an elderly woman. Threats were offered to them and some violence was used. The two persons in escaping threatened a caretaker with a knife. The appellant was himself caught at the scene and was identified in the course of the trial. The knives were found outside the premises.

3. On the face of it, that which has become the normal run in domestic robberies for which condign punishment is advisable, not only to deter others but to punish the perpetrators.

4. When the appellant first appeared before us, he showed signs of that which appeared to us to be genuine remorse for his actions. He made reference to his family circumstances which suggested to us that a probation report and a social inquiry report might be of assistance to the court in the consideration of the appeal. We have now received both of these reports.

5. I might say, at this stage, that the appeal in relation to the six months' imprisonment consecutive on the third charge must be allowed in any event and the sentence should be made to run concurrently with the other two sentences leaving a totality of six years. And that is the sentence which we are now considering, the totality of six years.

6. We have given anxious consideration to this matter mainly because of the nature of the social inquiry and probation officer's reports. The appellant had a clear record - that of itself is not necessarily a matter for mitigation of sentence in robberies of this nature- but added to that is a very good previous record both within his family and within his work. He had come out to work at an early age in order to assist his family's finances so that his younger brother could go to University. The owner of the factory in which he worked thought him to be diligent, responsible and honest, a person who had the zeal to "pursue for higher professional standing" and he had in fact joined an apprentice training scheme. The appellant admitted to the probation officer that he yielded to "greedy desire" when his fellow robber invited him to join in the commission of this offence.

7. The appellant's father has silicosis as a result of his employment and is unable to work. The youngest son of the family is a mentally retarded. The eldest is stated to be somewhat "odd" but he has married and contributes an amount per month to the parents. The next two children are girls, both married and living away and there are two sons, both earning and contributing to the family.

8. While the appellant was not the man actually carrying the gun, he was in the joint possession of it with his co-robber. As was said a moment ago, we have given very anxious consideration to this matter and it seems to us that this is one of those very rare cases where the remorse is genuine and where there is a possibility that the appellant will have learnt his lesson. It may well be that if clemency is exercised in respect of him at this point, then he might be prevented from being turned into a confirmed criminal.

9. We are not to be taken in any way to overlook the very serious nature of the offence for which he was convicted and anything we say in relation to this appellant in this case is not to be taken as a headline for any other case we intend taking that which we fully recognize to be a very exceptional course.

10. We are prepared to give recognition to what we think to be a genuine remorse, the possibility that he has learnt his lesson and to honour the contents of the reports which we have before us as to his previous conduct and the circumstances of his family, by reducing the sentence. This is not to imply that on the evidence before him that the trial judge was in any way wrong in principle in the sentence which he imposed. It is to all intents and purposes a tariff sentence and a properly imposed one and I think that having said that it stresses the exceptional course which we are now taking in the light of the further information which we have. The sentence of six years' imprisonment will be reduced to one of three years' imprisonment and the appeal is allowed to that extent.

11. The Order would be the appeal allowed and the sentence of six months on the third charge to run concurrently with the sentences imposed on the first and second charges and the sentence imposed on the first charge to be reduced to one of three years' imprisonment from that of the six years imposed. Which makes a totality of three years.

Representation:

Appellant in person.

R. G. Walters, Esq., for Crown/Respondent.