WAN SZE v. THE QUEEN

CACC000639/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 639 OF 1970

BETWEEN
WAN Sze Appellant
and
THE QUEEN Respondent

—————–

Coram: Mills-Owens, Huggins & McMullin JJ.

Date of Judgment:

—————–

JUDGMENT

—————–

Huggins, J.:

1. The appellant appeals against a sentence of 8 years’ imprisonment imposed on him upon his conviction for robbery with aggravation.He was jointly indicted with five others for an armed robbery at the Yien Yieh Commercial Bank in the course of which a sum of $144,025in cash was stolen. In the event no evidence was offered against the other five men upon this count. However, one man not named inthe present indictment was separately indicted upon a charge arising out of the same robbery and upon his plea of guilty he was sentencedto 10 years’ imprisonment.

2. The facts were that on 22nd August 1969 four men entered the bank and threatened the persons inside. One of them jumped over thecounter and proceeded to remove money from drawers. He was resisted by a member of the staff who received a cut wound from a knife.One of the other robbers fired two shots from a pistol, but no one was hit by them. Having seized the sum of money named in the indictmentall four men left the bank and drove off in a motor car. The man sentenced to 10 years’ imprisonment was one of the men who enteredthe bank and actually committed the robbery. The appellant did not enter the bank but it is admitted that he was outs and openedthe door of the car for the robbers as they escaped. There no evidence that he was armed but he made a statement in which he admithelping to plan the robbery and it is clear that he was present at the scene and available to give assistance if required. For hispart in the robbery he received or expected to receive $20,000.

3. Two other men have been sentenced for their parts in the affair. One took part in the planning of the robbery but was prevented fromtaking part in the robbery itself because he was arrested, before it was perpetrated, and charged with an offence under the Dangerous Drugs Ordinance. Upon his plea of guilty as an accessary before the fact to robbery he was sentenced to 6 years’ imprisonment. The second man wasconvicted of receiving stolen property and upon his plea of guilty was sentenced to 3 years’ imprisonment.

4. Counsel has urged that the appellant played a comparatively minor role in the robbery and, indeed, that since the only thing he wasproved to have done in the course of the robbery was to open the car door he played a smaller role than the man who was sentencedto only 6 years’ imprisonment and who was only prevented from taking an active part (and possibly a major part) because of his priorarrest. Moreover, counsel emphasizes that of all those convicted the appellant was the only one who did not have a long criminalrecord: he had never been in trouble before.

5. We do not think much assistance is to be obtained from a comparison of the sentence imposed upon the appellant with that imposedupon the man who was convicted as an accessary before the fact. We express no opinion as to the propriety of the sentence passedon the accessary but we cannot agree that the appellant played a smaller part than he, in view of the evidence that both were involvedin the planning of the robbery.

6. The important thing is that the appellant was present, aiding and abetting the robbers and whether or not he was himself armed hemust have been aware that the robbers were. The size of his share suggests that he was expected to be something more than a mereopener of car doors. If, therefore, he had had a record comparable to those of the other men involved we think that the sentenceof 8 years’ imprisonment might have been justified, though we might ourselves have thought a sentence of 7 or even 6 years more appropriate.However, the appellant did not have any previous convictions and after much anxious considerations we think that that fact is notsufficiently reflected in the sentence passed upon him. Accordingly we reduce the sentence to one of 6 years’ imprisonment.

7. In the course of the argument we were referred to the recent judgment of this Court in LI Wan v. Reg. Criminal Appeal No.321 of 1970 and it was suggested that the case was authority for saying that an increase in the prevalence ofa crime after sentence for a particular offence was a material consideration upon an appeal against that sentence. We doubt whetherin its context what was there said can fairly be so construed but, be that as it may, we take the opportunity to say that such anunfair conclusion was not necessary for the decision of that case and it was certainly not intended.

Representation:

Jackson-Lipkin assigned for Appellant.

M. Wong c.c. for Respondent.