Wong Sui-ming v. R.

CACC000307/1992

IN THE COURT OF APPEAL

1992, No 307
(Criminal)

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Coram: Hon. Macdougall V-P, Mortimer J.A. and Bewley J.

Date of hearing: 19 August 1993

Date of judgment: 19 August 1993

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J U D G M E N T

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

1. The applicant was convicted of two offences of robbery and two associated offences of possession of firearms before Leonard J. and a jury on 29 July 1992. He was sentenced to a total of 22 years imprisonment. The sentences were 20 years imprisonment for the first robbery with 12 years concurrent for the possession of firearms and 15 years for the second robbery with 12 years concurrent for possession of firearms. The last two sentences were to commence 7 years after the sentence in count 1. The applicant applies for leave to appeal, first, against conviction.

2. The facts were these. On the first two counts the applicant was one of four men, armed with pistols, who entered a branch of the Commercial Bank of Hong Kong in the afternoon of 6 July 1990. They were masked with stockings. They indicated that they would use the firearms if necessary. They took $238,000 in cash from the Bank and a necklace from Chan Man-kwong who was hit on the back of the neck.

3. The applicant was not apprehended after those two offences. On 27 March 1991 alone he went into a property agency and held up the proprietor. He had a gun and threatened to use it if necessary by clicking the mechanism to threaten him. The proprietor was relieved of his Rolex watch and $2,300 in cash which was the total he had on him.

4. The grounds which the applicant advances are, first, that in the midst of trial the judge allowed the prosecution to adduce fresh supporting evidence against him and that his counsel had objected strongly that it was contrary to law. Secondly, that the trial judge failed to clearly and accurately list the doubts in the case, resulting in an unfair verdict being reached.

5. As to the first of those grounds, nothing is advanced here to support it.

6. We turn to the second ground.

7. The evidence in the case on the first two counts consisted particularly of photographs taken in the bank during the robbery upon which the Crown relied for identification, together with a shoe-print which could have come from a shoe found at the accused's home. The photograph also showed that one of the men was wearing similar shoes and apparently one of the photographs showed a man on the counter of the bank near the place where the print was found. That was alleged to be the accused, the applicant in this case.

8. So far as the second robbery and possession of firearms were concerned, the evidence came from officers who were keeping watch on the accused. There was identification from officers who saw him leave the premises immediately after the robbery. There was also an identification of the applicant by the victim who picked him out on an identification parade. There were admissions to the police on his arrest. The issue in the case, therefore, was identification on each occasion.

9. The judge summed up the evidence on identification with considerable care and the necessary directions were given to the jury with the necessary warnings. There are no arguable grounds to support this application and leave to appeal against conviction is refused.

10. We turn now to the application for leave to appeal against sentence. Mr Mullick, who appears on this application for leave to appeal against sentence, first submits that taken in isolation the sentences passed by the judge for these offences - in particular on the first two counts - were manifestly excessive. Secondly, although he concedes that consecutive sentences were justified for the two robberies and associated possession of firearms, he submits that in totality the sentences were too high and that a sentence in the region of eighteen years would have been more appropriate.

11. In support he cites a number of cases. A recent case in this Court, R. v. Pang Chun-wai Cr App No 7 of 1992, where for an undoubtedly serious case of robbery with the use of weapons a life imprisonment was set aside and a total of 18 years imprisonment was imposed. Further, there is reliance upon R. v. Wong Ping-vu [1987] HKLR at 785; R. v. Ip Tin-yan Cr App No 1109 of 1982 (unreported), R. v. Chan Lee-kong [1986]1 HKLR at 1096 and R. v. No Wai-ming [1980] HKLR 228. All those cases, if looked at in isolation, demonstrate that in the past lighter sentences have been imposed for serious offences of this nature. Mr Mullick relies particularly upon the fact that in these offences the firearms were not actually used. There was no gratuitous violence. No tying up and no use of firearms to effect escape.

12. In recent years, however, sentences for this type of offence has increased. It has been necessary for the Court to increase the sentences because of the prevalence of armed robberies involving the use of firearms and it has become necessary to pass severe deterrent sentences. This is a matter which the learned judge took into account when he said in sentencing "I also take into account the prevalence of robberies involving firearms in this Colony at present."

13. So far as the first count is concerned and the associated second count, possessing of firearms, this was an armed robbery, in a gang of four; the men were masked; it was on a bank; there were threats to use the guns which were taken seriously and there was some minor violence. Some nine months later the second robbery took place, a less serious offence, but nevertheless the victim was clearly frightened and the applicant intended him to be frightened by clicking the gun and threatening to use it if necessary.

14. When the learned judge was considering the sentence which ought to be imposed, he took into account the matters which were advanced in mitigation, but this applicant came before him, having served a sentence of ten years for earlier offences of robbery. On that earlier occasion there were five offences. In this case, although undoubtedly the total sentence was heavy, it was justified by the facts. The learned judge had to consider the particular facts and he did so. The chief consideration for him was the question of totality.

15. We consider that the total of 22 years was neither wrong in principle nor manifestly excessive. Leave to appeal against sentence is consequently refused.

Representation:

I.G. Cross, QC and Miss M. Wu (Crown Prosecutor) for Crown/Respondent

John Mullick (DLA) for Applicant (re: sentence)

Applicant in person (re: conviction)