The Queen v. Ki Kwan Keung

CACC000387/1986

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Yang, J. A., Penlington and Macdougall, JJ.

Date of hearing: 4th December 1986

Date of delivery of judgment: 4th December 1986

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JUDGMENT

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Penlington, J.

1. This is an application for leave to appeal against sentences on charges of robbery, indecent assault and unlawful wounding.

2. The facts as found by the trial judge were that on the 18th October 1985 the applicant entered the premises of the complainant, the proprietress of a restaurant. He demanded money and searched the proprietress taking away $800 from her person. He then said he wanted to collect some personal belongings which he had left in the store-room. When the lady went into the store-room to get them, he followed her, tied up her hands with electric wire and gagged her; he then pushed her down and removed her lower garments. When she resisted, he cut her neck with a sharp instrument and banged her head on the floor. She lost consciousness. When she regained consciousness she summoned the police.

3. The accused was arrested on the 4th of November 1985 and under caution, made a statement to the police admitting these offences.

4. The trial judge sentenced the applicant, who has a long list of previous convictions including one for a sexual offence, to consecutive sentences; on the charge of robbery, he sentenced him to three years imprisonment; on the charge of indecent assault to 9 months imprisonment; and on the charge of wounding to 18 months imprisonment, a total of 5 years 3 months. The applicant appeals on the basis that those sentences should be concurrent because they were all committed at the same time.

5. In our view, the trial judge was quite right in ordering consecutive sentences. Each of these offences was different in nature, although committed at the same time and should be looked at separately.

6. As the trial judge said the indecent assault was very near attempted rape and the applicant is indeed lucky that he was not so charged. The sentence for indecent assault of 9 months imprisonment, on the facts of this case, is indeed lenient and can only be justified on the basis of the totality of the sentences of five years and three months. This was a serious attack on a woman and there is no merit whatever in this appeal. The applicant was convicted in March 1985. Normally we would have ordered the sentences to run from that date, however that is going back a long while and under the circumstances, we will only order loss of time of three months.

Representation:

Applicant KI Kwan Keung in person

P. K. M. Longley, S. A. C. P., for Respondent