1994, No. 607




Coram : Macdougall V.-P. & Bokhary J.A.

Date of hearing : 14 March 1995

Date of judgment : 14 March 1995




Bokhary, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence. The sentence is one of 10 years’ imprisonment. It is made up of a termof that duration for robbery and a concurrent term of six years for possession of an imitation firearm at the time of committingthat robbery.

2. The applicant, a man aged 30, pleaded guilty to both counts after the voir dire but before a jury was impanelled. Deputy Judge Burrell passed sentence on November 18 last year.

3. Turning to the broad circumstances of the offences, they are these. The robbery was at a boutique in Mongkok. And the applicant wasone of two robbers. It was the other robber who carried the imitation firearm, described as a “pistol-like object”. But the applicantis equally to blame for the possession of the imitation firearm during the robbery in which he fully participated. $1,100 in cashwas taken.

4. In sentencing the applicant on the robbery count, the judge took into consideration the possession of an imitation firearm at thetime of committing the robbery. Doing so, he imposed a concurrent sentence for the possession of the imitation firearm. In adoptingthat approach, the judge was right.

5. Possession of a firearm or imitation firearm at the time of committing a robbery is always fully taken into account for the purposesof the sentence on the robbery count. Any firearm or imitation firearm count only overloads the indictment. A stop must be put tosuch overloading.

6. Overall, the judge took a starting point to 12 years which he discounted by two years for the guilty pleas which did not come atan early stage but provided strong mitigation nevertheless.

7. When it comes to the appropriate level of sentences in cases of robbery involving the use of firearms or imitation firearms, guidelineswere laid down by this Court very recently in R. v. Yu Tai Wing, Criminal Appeal No. 454 of 1994, February 28, 1995 (as yet unreported). It is not necessary to rehearse here what was said there.Nor does what was said there require any expansion or explanation. What we do is to draw that decision, a very recent one as we havepointed out, to the attention of sentencing judges and practitioners.

8. When that decision was drawn to the attention of Mr Reading for the prosecution, he conceded that the overall starting point of 12years taken by the judge was too high. That concession, in our judgment, is well-founded.

9. We think that the overall starting point should have been 10 years’ imprisonment. A two-year discount from that sentence was appropriatein all the circumstances. The concurrent term on the possession of imitation firearm count, which is of no practical significanceanyway, is left undisturbed. So the overall sentence should be reduced from 10 years to eight years, that being achieved by sucha reduction of the term on the robbery count.

10. Treating the hearing of this application as the hearing of the appeal itself, we allow the appeal to make that reduction, so thatthe sentence comes down from one of 10 years’ imprisonment to one of eight years’ imprisonment. The appeal is allowed to that extentaccordingly.

(Neil Macdougall) (K Bokhary)
Vice President Justice of Appeal


Applicant in person

Mr J. Reading (of the Attorney General’s Chambers) for the Crown