R. v. Sung Kin Wai

CACC000448/1994

IN THE COURT OF APPEAL

1994, No. 448
(Criminal)

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Coram : Hon. Yang, C.J., Penlington, and Liu, JJ.A.

Date of hearing : 22 February 1995

Date of judgment : 22 February 1995

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction and sentence. However the applicant indicated before us that he abandons his application for leave to appeal against conviction. We are therefore concerned only with the application for leave to appeal against sentence.

2. The applicant was convicted of two charges, one of robbery, on 20th August 1993, of a taxi driver with two other men, one of whom was Tse San, who pleaded guilty and the other man was never arrested. The taxi driver, after being robbed, was placed in the boot of the taxi which was driven away.

3. The evidence was that the taxi driver was threatened with a knife having been told to drive to a remote location. His valuables were taken from him and included was a visa card and, when the robbers failed to obtain what they regarded as sufficient money, they obtained the taxi driver's PIN number with the intent obviously of taking further money from his bank account. As was said in the Queen v. SUN Sheung-chun, Crim. App. No. 152 of 1993, that is an aggravating factor.

4. The trial judge imposed a sentence of 8 years' imprisonment in respect of the taxi robbery. It was said in the Queen v. TRAN Van-anh, [1993] 2 HKCLR 122, that sentences of 7 years for robbery of taxi drivers late at night after a contested trial, as here, are appropriate. The sentence of 8 years, in view of the theft of the credit card and obtaining the PIN number, can't be said to be in any way wrong.

5. The second count also involved Tse San and was on 15th September, almost a month later. The applicant was arrested with Tse San, who had a pistol and ammunition, in the street and made a statement in which he said they were intending to commit a robbery. The applicant was however acquitted of the 2nd charge which was being in joint possession of arms and ammunition, i.e. the pistol and rounds of ammunition carried by Tse Tan.

6. The applicant was also sentenced to 8 years' imprisonment in respect of that offence. The sentences were ordered to be entirely consecutive, making a total of 16 years' imprisonment.

7. The applicant has previous convictions although, as Mr. Oderberg, who appears for him here, points out, none of them is for robbery but one involved theft and one involved criminal damage so he did have previous convictions for both violence and dishonesty. It is also contended that the judge was not entitled, on the evidence, to regard the applicant as the ring-leader who brought others into Hong Kong "to do his dirty work".

8. While in themselves the sentence of 8 years' imprisonment on each count could not be said to be wrong in principle if standing alone, they do not reflect the fact that the applicant was acquitted on the charge of possession of the arms and ammunition. Taking that factor into account, we consider that the totality of the sentences of 16 years is too high. We therefore allow the application for leave to appeal against sentence in respect of the third count, that is the conspiracy to rob and we order that the sentence in respect of that count to be 6 years consecutive and 2 years concurrent with count one, making a total sentence of 14 years' imprisonment.

Representation:

Mr. K. Oderberg instructed by D.L.A. for the applicant (re. sentence)

The applicant - in person (re. conviction)

Mr. D.G. Saw, S.A.C.P., for the Crown