Chan Ngai Tung and Another v. The Queen

CACC001033/1977

Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 1st December, 1977.

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JUDGMENT

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1. The first appellant pleaded guilty to one offence of robbery and to being in possession of an offensive weapon in a public place. The second appellant pleaded guilty to one offence of robbery. The first appellant was sentenced to two and a half years' imprisonment on the robbery charge and to one year on the second charge. The sentences were ordered to be served consecutively, making three and a half years' imprisonment in all. The second appellant was sentenced to three years' imprisonment.

2. Both appellants appeal against these sentences.

3. The facts are simple. On the night of August 26th, 1977 the defendants with one other person who pleaded not guilty at the trial, robbed a taxi driver of $119 and a piece of jade. The first appellant threatened the driver with a knife. After the robbery the appellants and their companion escaped from the scene in another taxi but they were caught soon afterwards as a result of some excellent police work.

4. The first appellant is aged 16 ½, the second appellant is 18. Both appellants have clear records and both pleaded guilty. When the appeal came before the court on November 11th, 1977, we adjourned it and asked for reports from a probation officer and the Prisons Department.

5. It appears that the appellants were fruit hawkers and were doing quite well until their stock and hawkers' cart were confiscated sometime in August. This rendered them penniless and so they committed this robbery in order to recoup themselves. The courts have often remarked on the dire consequences to hawkers of the confiscation of their stock and hawkers' equipment, particularly of the latter. And this is a case in point. The appellants were members of a triad society and it is not surprising that they took the course that they did.

6. The reports submitted to the court show that the appellants were not suitable for detention in a detention centre. And the first appellant cannot be sentenced to detention in a training centre in view of the mandatory sentence of imprisonment on the offensive weapon charge.

7. We agree with the trial judge that taxi drivers are particularly vulnerable to robbery at knife point and we have remarked before that this offence must be severely dealt with.

8. However, we think that the offence of being in possession of an offensive weapon was really part of the armed robbery and that therefore the sentences passed on the first appellant should be served concurrently and not consecutively.

9. We therefore allow the appeal of the first appellant to the extent that the two sentences passed on him are to be served concurrently, i.e. his total sentence will be two and a half years. The appeal of the second appellant is dismissed and the sentence of three years will stand. This will accord with the view of the trial judge which was that the second appellant should receive a "slightly enhanced" sentence.

Representation:

Appellants in person.

Griffiths for the Crown/Respondent.