The Queen v. Lai Kung-ping

CACC001355/1983

IN THE COURT OF APPEAL

BETWEEN

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

Date: 25th January 1984

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JUDGMENT

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Silke, J. A.:

1. In this matter we have taken a somewhat unusual course. Although we have already given judgment on the appeal. and given our reasons the order in that appeal not having been perfected we have brought the matter again before us.

2. We have had, quite frankly, second thoughts though, as we said originally, a sentence of five years' imprisonment for the nature of this offence is by no means wrong in principle. We are, however, concerned in particular with the background of this applicant, of the circumstances which led up to the offence and of the facts as taken into consideration by the trial judge at the time of passing sentence.

In passing sentence the trial judge said:

"In my view the only mitigating factor of any weight was the defendants plea of guilty. I considered, however, that any reduction in sentence for his plea of guilty should be small ........"

The reason for that was that the applicant was apprehended almost at the scene and with the stolen necklace upon him.

3. However, there are circumstances which relate to a lack of premeditation in the commission of the offence which the judge would have been justified in taking into consideration. There is a difference between a person who goes out upon roving commission to rob armed with a lethal weapon and a man who, in a desperate state, made resort to an "off the cuff" robbery. The difference in degree may not be very great but we do think there is a difference.

4. Here in accordance with the law, and we certainly cannot derogate from that, the applicant's goods had been seized when he was arrested for a hawking offence. The seizure was not by the Court, whom the Legislature has seen fit to leave with no discretion in this matter at all, but by the arresting officer. As we said, that is the law and that is permitted. But it can, and it does, lead to very considerable hardship. That is one aspect.

5. The second aspect is that the implement which was used, and the sentencing judge referred to it as "a knife", was one with 1½" blade. Whether that be a nail file as suggested by the applicant, or an actual knife, it is not the normal robber's weapon.

6. Both of these factors tend to lead to a lack of premeditation in the offence. We think the trial judge would have been entitled to have taken those matters into consideration as factors in further mitigation.

7. Whilst we have said that generally five years' imprisonment would not be wrong in principle, in this particular case we intend to reduce that to one of four years' imprisonment to allow for the factors we have mentioned. So the order granting the application and allowing the appeal. is extended - we had allowed the appeal in part on the last occasion by remitting the fine of $250 - to the extent of reducing the period of five years' imprisonment imposed to one of four years.

Representation:

Applicant in person.

B.M. Ryan, Esq. for Crown/Respondent.