R. v. Wong Yat-muk and Another

CACC000382/1996

IN THE COURT OF APPEAL

1996, No.382
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer & Mayo, JJ.A.

Date of Hearing: 31 October 1996

Date of Judgment: 31 October 1996

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. There are two applicants, the first faced four charges of robbery and the second faced five charges of robbery. In all a number of defendants faced eight charges of robbery. The first applicant was involved in Charges 3, 4, 7 and 8 and the second applicant in Charges 2, 3, 6, 7 and 8. Each pleaded guilty to those charges to which I have just referred. The first applicant was sentenced to four years on each charge. It was ordered that the sentences on Charges 4, 7 and 8 be concurrent and that 18 months of those sentences be consecutive to the sentence on Charge 3, making a total of 5½ years. As regards the second applicant, he was sentenced on Charges 2, 3, 7 and 8 to four years and on Charge 6 to three years. Charges 3, 6, 7 and 8 were ordered to be concurrent and 18 months of those sentences was ordered to be consecutive to the sentence of four years on Charge 2. That also made an overall sentence of 5½ years.

2. The facts are succinctly stated by the trial judge, H.H. Judge Christie, in his Reasons for Sentence when he says:

"The two defendants were a part of a gang which conducted a number of muggings of night-club hostesses over a short period in November last year.

The pattern was always the same, two robbers would attend the night-club and buy out the girl or girls. When they reached a staircase, or similar secluded place, at least three others would appear to join in and conduct the robbery.

No weapons were used in any of these cases but the facts were aggravated by certain factors. Firstly, by the numbers of the gang which took part. Secondly, usually, by the fact that more than one victim was robbed at a time and thirdly, due to the fact that in nearly every case the robbers, you the defendant and your fellow culprits, imposed further violence on the victims to force them to disclose the personal identification numbers relating to their bank accounts. Therefore, subject to one exception, each robbery was attended by a second level of violence greater than the first because the victims were unwilling to disclose the information."

3. The trial judge went on to say that having taken these matters into account he considered that the starting point in each robbery except for Charge 6, in which there was only one victim and no beating, should be 6 years. He said that as they had pleaded guilty he would give them a full one-third discount reducing the figure of 6 to 4 years. He went on to say that there was no other mitigation and that he had to take into account that there were a number of offences. He considered, given the number of offences, that the proper totality was 5½ years and sentenced accordingly.

4. The applicants have today raised a number of grounds complaining that the sentence of 5½ years was too severe. We deal first with the written grounds.

5. The first applicant says that the judge, having said that four years was a proper sentence, went on to sentence him to 5½ years. This is simply not correct. The judge said four years was a proper sentence on each of the counts. 5½ years was the overall sentence he imposed taking into account, as regards the first applicant, that he had committed four serious robbery offences. There is nothing in this submission. The applicant suggests that the offences in which he was involved were not as bad as some of the other ones that the judge was dealing with. Whether or not this be so they were very serious offences and fully merited the starting point of six years fixed by the judge. Finally in his written grounds he suggests that the judge did not consider his probation report and did not take into account or give full weight to the fact that he had a pregnant wife and that he was the bread winner of the family. These are personal considerations to which no real weight can properly be given when dealing with offences of this kind.

6. The first applicant when addressing us urged that one of the other defendants who pleaded not guilty had received only 6½ years and suggests that his sentence should be calculated by applying a discount of at least one-third to that figure. We reject this suggestion. We do not know what facts were placed before the court in relation to the other defendant. We are satisfied that in relation to this applicant the judge, fully appraised of the criminality involved, sentenced properly in relation thereto.

7. The second applicant in his written grounds suggests that insufficient consideration was given to his plea of guilty, his clear record and the fact that no weapons were used and nobody was injured. The judge had all of these matters in his mind when he sentenced. He also suggests that the judge failed to give sufficient weight to his family background and to the mitigation contained in the probation report. There is nothing to suggest that the judge did not bear those matters, for what they were worth, in mind. He finally suggests that he was not given a reduction of one-third. This is not so. The judge clearly gave the appropriate reduction for the pleas of guilty.

8. These were despicable offences. They were carefully planned. They were committed by a group. The group preyed upon young women who had no hope of resisting them in circumstances that must have been wholly terrifying. In our view the sentences were not a day too long. The applications for leave to appeal against sentence are refused.

Representation:

Mr. Schapel, Consultant (Crown Prosecutor) for the Respondent.

Applicants in person.