The Queen v. Yip Kai Foon

CACC000428/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Fuad V.P, Kempster & Penlington, JJ. A.

Date of hearing: 31st May 1988

Date of judgment: 31st May 1988

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J U D G M E N T

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Kempster, J.A. :

1. The matter presently before us has an unusually protracted history.

2. In October 1985 on the verdicts of a jury Yip Kai Foon was convicted by Hooper J on two counts of handling stolen goods one count of possessing firearms and ammunition without licence and one count of using a firearm with intent to resist arrest. He was sentenced to six years' imprisonment on each of the handling counts, to run concurrently, and to twelve years' imprisonment on each of the firearms convictions, to run concurrently." However, the sentences, on the firearm convictions were ordered to run consecutively to those on the handling convictions and a suspended sentence of three months imprisonment was given effect; also consecutively. So Yip was sentenced in all to eighteen years and three months' imprisonment.

3. Yip applied for leave to appeal against these convictions and alternatively against the sentences. On 22nd May 1986 the applications in relation to the handling Counts were allowed. The hearing being treated as the hearing of the appeal those convictions were quashed and the related sentences set aside. Retrials in the District Court were ordered.

4. The Attorney General obtained special leave from the Judicial Committee of the Privy Council to appeal against the orders made by the Court of Appeal and on 7th December 1987 the Judicial Committee allowed his appeal and advised that the convictions on the handling counts be restored. On 9th February 1988 this Court so ordered and directed that Yip's application for leave to appeal against the sentences imposed in October 1985 should be listed for hearing. These applications we have now heard.

5. The goods were handled by the applicant during December 1984 and constituted watches taken during the previous October in the course of armed robberies perpetrated at the premises of the King Fook Jewellery Co Ltd and Dickson Jewellery Co Ltd. The goods was said to be worth HK$1.2m but the applicant was offering them for sale at HK$240, 000. When a police officer sought to arrest him he produced, a. 38 revolver which was cocked and loaded. He was overpowered. A further weapon was found in his possession a loaded. 25 automatic pistol.

6. The applicant was aged some twenty-four years at the time of his conviction It is contended that the sentences passed on him were, in their totality, excessive and did not allow for his acquittals on charges of actual robbery. That is what appears in the written grounds. No discount fell to be made for plea but the applicant had only one previous conviction; that for loitering giving rise to the suspended sentence.

7. As Hooper J said when sentencing, the applicant, the maximum penalty for the firearms offences was increased in 1984 to fourteen years and that for making any use whatsoever of any arms or ammunition with intent to resist arrest to life imprisonment. He said that the legislature has thus made it very clear how seriously these offences were to be regarded and then, in words which we would endorse :

"In my view, the police officers of this colony, who have the unpleasant task of arresting armed and dangerous men like yourself, should have the protection of the courts, and it should be made clear that, if anybody makes any use whatsoever of a firearm to resist arrest, he will be severely punished".

8. Mr Keane, for the applicant, invites us to proceed by way of analogy to the approach to sentence of this Court when hearing a reference by the Attorney General. In other words to allow for dashed hopes. He referred to passages from the judgment given in R v Wong Muk Ping⁽¹⁾ where allusion was made to the doubts and anxieties experienced by the applicant between the time his appeal against conviction was allowed and the time he came back before the Court after the conviction had been restored. That was a case where the applicant had been granted bail pending the outcome of an appeal to the Privy Council and had thus again enjoyed the delights of freedom. Insofar as mention was made of "contribution to jurisprudence" that was not a factor affecting sentence.

9. We do feel that there is some force in the analogy put to us by Mr Keane. In the light of that consideration we will so apply section 68 of the Criminal Procedure Ordinance, which provides for concurrency of sentences, as to substitute for the overall sentence of eighteen years imposed a sentence of sixteen years.

(1) Cr App No 92 of 1984 (unreported)

Representation:

P J Dykes for Crown/Respondent

Desmond Keane Q.C. & John Masray (Anthony Kwan & Co) for Appellant