Luk ...(Illegible) Wing and Other v. The Queen

CACC000323/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 323 OF 1975

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 20th June 1976 .

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JUDGMENT

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Huggins, J.:

1. These three Appellants appeal against their sentences. They, together with another man, went to a village in the New Territories obviously intending to commit a robbery.  They took with them nylon ropes with which to tie up anybody who interfered with them.  Their arrival was heralded by the barking of dogs, whereupon one householder came out to investigate.  He was immediately attacked: he was struck and threatened with a knife. Having been overpowered, he was gagged, and being put into his mouth to prevent his shouting any more.  A farm employee of this man, a woman of ...(illegible) years of age, came to investigate, having ...(illegible), ...(illegible) was attacked.    ...(illegible) pushed into the house: she was pushed on to the floor and stamped on.  She was also struck with some unknown object.  She was then tied up with the rope, which had been produced, her feet being fastened to a window frame.   The robbers proceeded to ransack the house, but the alarm had been raised in the village and a number of villagers came to investigate. The robbers ran away but they were ...(illegible) by one of the villagers, who, receiving an unsatisfactory reply to a question, tried to arrest them.  He struck the second Defendant to the ground and was thereupon attacked by the other Appellants with a knife.  The villager received Laceretions in his back, face, neck and chest, his wounds required thirteen stitches.   Another villager then came on the scene and tried to stop the robbers.  He also knocked the second Defendant to the ground and he was attacked by the other Appellants, receiving injuries to his hand.

2. This incident was made the subject matter of four charges, disregarding another charge with which we are not concerned. The first and second charges were charges of assault with intent to rob, the assaults being on the householder and his farm worker.  There was then a third charge of wounding with intent, that being on the first of the villagers, and the fourth charge was assault with intent to resist arrest in respect of the charge against the first Appellant in respect of a totally unrelated robbery.

3. The learned judge passed sentences of four years' imprisonment on each of the Appellants in respect of the first charge and sentences of the one year's imprisonment consecutive in respect of the second charge.  That was all so far as the second Appellant was concerned, for he was charged with subsequent assualts but the charges were not preceeded with.  The totality of the sentences against him was therefore five years.  In respect of the third charge against the first and third Appellant, the learned judge imposed two years' imprisonment consecutive and in resepct of the fourth charge one year's imprisonment concurrent.  There was a total of seven years' imprisonment.  That being the ...(illegible) which could be imposed by the learned judge in the District Court is necessarily followed ...(illegible) on the fifth charge against the first Appellant had to be concurrent.  In fact the sentence was one of one year's imprisonment.   That particular robbery took place at a physician's clinic where not only the physician himself but also some of his patients were robbed and a nurse received a cut wound on her hand.  The first Appellant was in company with two other men on that occasion.

4. On any view thir was a serious matter. These Appellants were obviously determined  in their intentions to rob and they carried out their intentions with no thought of merry for their victims. The learned judge was quite right in saying that this sort of conduct must be severely punished.

5. It has been submitted on behalf of the Appellant that consecutive sentences were not justified in all the circumstances, four years'imprisonment on the first charge was a deterent sentence and the subsequent three charges related to the same incident. We approach the matter slightly differently, but in a way which probably recognizes the force in Mr. Woo's argument. We think that consecutive sentences were proper in this case: in particular we think that the sentence on the second charge ought certainly to be consecutive: the at ask on this old lady was a disgraceful act. Nevertheless, even taking into account the fact that this robbery took place in the New Territories in a rural area, where police protection to law abiding citizens is not as easily rendered as elsewhere, we think that the totality of the sentences on these young men was more than justice required.

6. The second Appellant had had a clear record, and the other two Appellants had only one previous conviction for membership of a tried society. We think the proper course is to substitute on the first charge a sentence of two and a half years' imprisonment  in each case, but having done that we order that the sentence on the fifth charge against the first Appellant shall run consecutively. The result is this. The first Appellant will serve a sentence of six and a half years', the second Appellant of three and a half years' imprisonment and the third Appellant of five and a half years' imprisonment.

7. We so order.

20th June 1976 .

Representation: