The Queen v. Ku Wai Kung

CACC000363/1990

BETWEEN

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Coram: Hon. Silke, V.-P., Power and Macdougall, JJ.A.

Date of hearing: 9 October 1990

Date of judgment: 9 October 1990

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JUDGMENT

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Macdougall, J.A.:

1. The applicant who is twenty years of age pleaded guilty to robbery before His Honour Judge Leong sitting as Deputy Judge of the High Court and was sentenced to 5 years imprisonment. He now applies for leave to appeal against that sentence.

2. The facts were that the applicant was one of two men who accosted two employees of a firm who were carrying a bag containing $141,000 to be deposited at a nearby bank night deposit box. The applicant pushed one of the employees to the ground while his accomplice used a knife that had been taken from the applicant's home for use in the robbery to strike at the employee. The intended victim, who was carrying the money bag, managed to avoid the blow by falling to the ground, but the applicant's companion leapt upon him and, after cutting his thumb, managed to wrench the bag from his grasp. Both men then ran to a nearby car in which a third man was waiting and drove off. When, however, the driver attempted to drive through a road block the police opened fire and he was fatally wounded. The money was recovered from the car but the applicant and his accomplice made good their escape. Three days later the applicant surrendered to the police. He was later identified at an identification parade as one of the robbers and his hand-print was discovered on a door frame of the car.

3. In his written grounds of appeal the applicant contended that his sentence is manifestly excessive bearing in mind his clear record, the fact that he did not use the knife in the course of robbery and the fact that he voluntarily surrendered to the police and pleaded guilty.

4. As he was not represented by counsel, he requested, and we agreed, that his mother be permitted to address us on his behalf.

5. She urged upon us all the matters referred to in the written grounds of appeal and laid particular emphasis on the fact that by voluntarily surrendering to the police the applicant had clearly demonstrated the great remorse he felt for having participated in a crime that had such disastrous consequences.

6. Since it was an agreed fact that the applicant knew that the knife was to be used in the robbery we are not persuaded that there is any merit in the contention that because he did not actually carry it his role was subordinate to that of his accomplice. That having been said, however, we think there is considerable force in the submission that the judge failed to give sufficient weight to the applicant's voluntary surrender to the police followed, as it was, by his plea of guilty. A voluntary surrender is an unusual feature in this type of case and is a strong indication of true remorse.

7. In the circumstances we have come to the conclusion that the sentence of 5 years should be reduced by 12 months. We therefore grant the application and treat it as the hearing of the appeal itself, allow the appeal, set aside the sentence and substitute for it a sentence of 4 years imprisonment.

Representation:

Mr. D.G. Saw for Crown Prosecutor

Applicant - Ku Wai Kung - in person