The Queen v. Chan Chi Wai

CACC000046/1991

BETWEEN

-------

Coram: Kempster, Clough & Macdougall, JJ.A.

Date of Hearing: 31 July 1991

Date of Judgment: 31 July 1991

----------------

JUDGMENT

----------------

Kempster, J .A. (giving the judgment of the court):

1. On 2nd November 1990, after trial in the District Court, Chan Chi Wai, then aged 20 years, was convicted by Deputy Judge Westbrook of robbery and on 20th of that month, the judge having sought and considered relevant reports, sentenced to 4 1/2 years imprisonment.   The robbery in question was committed on 21st August 1989.

2. About a month after sentence had been pronounced upon him by Deputy Judge Westbrook Chan Chi Wai was back in the District Court contesting a charge of wounding with intent. On 24th December 1990 he was convicted of that offence and on 7th January 1991 His Honour Judge Tung, also having sent for and considered reports, sentenced him to 2 years imprisonment to run consecutively to the term which he was already serving. The wounding offence was committed on 16th April 1990 while the applicant was on bail pending the hearing of the robbery charge.

3. Chan Chi Wai seeks leave to appeal against both sentences and asks us to extend time in relation to that imposed on 20th November. We cannot deal with the sentence imposed on 7th January last in isolation and for that reason we will extend time.

4. In the early hours of the morning of 21st August 1989 the applicant and 3 others hailed a taxi and directed the driver to go to the Fire Services Department Married Quarters at Fu Tei sheung Tsuen. On arrival one of the party put his arm round the driver's neck while another took the driver's waist pouch and a can of coins containing together some $650. The driver's identity card and driving licence were returned to him. Before the robbers made off the driver was given some punches to the head for good measure.  A wireless message was transmitted. Police came to the vicinity and the robbers were arrested and identified by the taxi driver.

5. At about l a.m. in the morning of 16th April 1990 2 men, one of them being Lee, Kin Wai, and 2 women were walking in Tsing Ling Path, Tuen Mun, on their way home after a meal in Kowloon and found themselves surrounded by a number of young men including the applicant. The applicant and another of the miscreants chopped Lee Kin Wai with beef knives causing him multiple wounds. The applicant made good his escape. Later he was arrested and identified at a parade.

6. The applicant told a probation officer that he had been associating with a Triad Society since he was 11 years old and had committed an offence of theft at 13. when he was 17 he was convicted of burglary and theft and sent to a Training Centre. He was discharged in May 1988. Having regard to the nature of the offences and to his record the two consecutive custodial sentences against which the applicant seeks leave to appeal cannot be faulted in principle. As to their individual and combined length, being  6 1/2   years, we cannot accept the plea that the later sentence should be altered to allow the periods of imprisonment to run concurrently. The overall term is not a day too long to reflect the criminality revealed by the facts we have just outlined. Already the applicant evinces an attitude which entitles the community to a period of protection from his proclivities.

7. The applications for leave to appeal against the two sentences are dismissed.

Representation:

Chan Chi Wai, Applicant in person

Mr. I.G. Cross, Q.C. & Mr. M.S. Cheung for Crown/Respondent