Wong Keung-chor v. The Queen

CACC000446/1982

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang Barker, JJ.A.

Date: 2 November 1982

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JUDGMENT

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Barker, J.A.:

1. In this case, the appellant, WONG Keung-chor, appeals by leave of the single judge against the sentence passed upon him by Mayo J. on three counts to which he had pleaded not guilty:-

2. The first count being that of robbery to which the learned judge sentenced him to 12 years' imprisonment, the second count being one of possession of arms without a licence, namely a starting pistol which had been adapted so that it could be fired, and the third charge being that of possession of ammunition without a licence namely five ball-bearings and a quantity of metal swarf. In respect of those two charges, the first charge he was sentenced, as I have said, to twelve years' imprisonment and on counts two and three, he was sentenced to five years' imprisonment - all those sentences being ordered to run concurrently.

3. The robbery itself took place on the 17th August of last year, when two men - one of whom quite clearly was this appellant - burst into the premises of Bonntile Industries at Luard Road in Wanchai, armed with knives and according to the evidence of a number of employees which was read out and therefore was not challenged in any way by the defendant, one of the two was armed with a pistol-like object, though there is no evidence that that object was actually pointed at either the manager or any of the staff.

4. The defendant's fingerprints were found on the premises and on a knife which was found on the premises.

5. His defence was that although he was there, he was merely a victim and was not one of the robbers. That defence was totally disbelieved and rejected by the jury, and the accused was therefore convicted on all three counts.

6. The main arguments which have been presented to us today by Mr.Sujanani on behalf of the appellant are that the trial judge failed to give adequate, weight to the youth of the appellant - he was at the time of the commission of the robbery 17 years and three months old - and also what Mr. Sujanani characterized as the 'jump' principle, namely that the appellant had been on the 12th February 1981 convicted and sentenced to a term of 6 months' imprisonment for the offence of possession of offensive weapon in a public place and says Mr. Sujanani:

"The jump between six months and twelve years is far too drastic a jump even having regard to the public interest and the way in which the public must be protected from offences of this nature and others deterred from committing."

7. It was said that there was no evidence as to what role the appellant played in this but as Mr. Jennings pointed out it is difficult for the Prosecution to do more than they did, the appellant's defence being "I was there but took no part in it at all and had nothing to do with it."

8. Clearly he was one of the two robbers. We are of the view that the learned judge was entitled to take into account, in passing sentence, the fact that a pistol-like object was produced.

9. Various cases have been cited to us in which sentences have been reduced from six years to three years and so on.  Cases, of course, depend very much on their special facts.   In one of the cases there was exceeding remorse. In this case there has been no such remorse because from first to last the accused pleaded not guilty and it was only today that he abandoned his application for leave to appeal against conviction.

10. Nevertheless, in our judgment, and bearing in mind particularly the youth of the appellant, the sentence of twelve years was too high. Even so, the sentence which we are about to pass must be a severe one. Offences of this kind are too prevalent and it is the duty of this court to pass a sentence which will deter others if possible.

11. We allow the appeal against the sentence in respect of the first count and we reduce the term of imprisonment from twelve years to one of eight years. The sentences on the second count and the third count will stay and all sentences will run concurrently.

Representation:

Mr. R.K. Sujanani instructed by Messrs. Jenkins, Oliver & Au for the Appellant.

Mr. M. Jennings for Crown/Respondent.