The Queen v. Tong Hoi Fung

CACC000466/1987

BETWEEN

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Coram: Hon. Yang, V.-P., Barker & Power JJ.A.

Date of hearing: 26 January 1988

Date of judgment: 26 January 1988

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J U D G M E N T

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Barker, J.A. :

1. This is an application for leave to appeal against sentence of six years' imprisonment. It was passed upon the applicant, TONG Hoi-fung, on 17th September of last year. That sentence was ordered to run consecutively to a sentence of five years' imprisonment which had been imposed upon him on the 24th September 1986 by Addison, J.

2. The facts of the instant case put shortly were that this was an armed robbery by four robbbers of whom this applicant was one. Physical violence was used. Husband and wife and their two young children were tied up. The premises were ransacked. The victims were in captivity for a whole night save for a short time when the male victim was untied and under threats wrote out cheques totalling $100,000.

3. Mr Forrest realistically said that he could not possibly complain of the sentence of six years per se imposed on the applicant for this offence nor could he complain of the sentence of five years imposed by Addison, J almost a year before per se. The burden of Mr Forrest's argument is that nevertheless looking at the matter in its totality a total sentence of 11 years is too high. It is to be observed that the second robbery was in fact committed two weeks after the first robbery. It is the first robbery with which we are dealing today. But there are various matters which he has to take into consideration. First, it is clear that, the applicant, whilst in custody, made a determined effort to, as he nut it, wipe his slate clean. He made a statement which inculpated his co-accused in this offence. He agreed to testify against his co-accused if called upon to do so and he pleaded guilty to the offence at the time when his co-accused was denying it. It was only when his statement was served on his co-accused that the co-accused realised that the game was up and he himself pleaded guilty. Clearly therefore the applicant did give valuable assistance to the police. For denying the offence with which he was sentenced in September of 1986 his co-accused, who also appeared before Addison, J, was sent to a Training Centre. The result of that was this, that when Deputy Judge Wong sentenced this applicant and his co-accused to six years' imprisonment the Training Centre order lapsed and his co-accused therefore was serving a sentence of only six years whereas this applicant was serving a sentence of 11 years. Thus, there was disparity between the effect of the two sentences; but as Mr. Forrest realistically agrees disparity of itself is not a sufficient ground for interfering at least in normal circumstances with what would otherwise be an appropriate sentence. Mr Forrest urges us to approach this matter as if the two cases had been heard together and look on that basis at the totality of the sentence. That is an approach we think is correct and viewing the matter in that light we are of the view that the totality of 11 years' imprisonment is excessive.

4. We take Mr. Cross's point that the judge could well have taken as a starting point on a trial a sentence of 9 years' imprisonment instead of the 8 years which he did take. It follows from Mr. Cross's submission the judge in effect gave an over-generous discount. If he be right on his 9 years starting point, the Judge's discount was one third. Be that as it may, we do not think that the learned judge can be criticised for taking 8 years as the starting point.

5. This Court has said time and time again that where there are more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only one offence. We cannot accede to Mr. Forrest's submission that we should treat the sentences concurrently but we do think that the learned judge did not pay sufficient attention to section 68 of the Criminal Procedure Ordinance Cap 221 We think, looking at the matter in its totality, that the proper sentence should have been such as to ensure that this applicant serves a sentence in all of 9 years' imprisonment and so we shall order that 2 years of the sentence of 6 years' imprisonment which has been passed on him will run concurrently with the sentence of 5 years' imprisonment imposed by Addison, J. We make that order under section 68 of the Criminal Procedure Ordinance. Accordingly, the application for leave to appeal against sentence is granted. We treat the hearing of this application as the hearing of the appeal and, for the order that 6 years, imprisonment will run consecutively to the serving sentence of 5 years, we order that 2 years of the 6 years' imprisonment will run concurrently with the sentence of 5 years imposed by Addison, J. and we make that order under section 68 of the Criminal Procedure. Ordinance.

Representation:

Mr. Robert Forrest (Alick Au & Massie) for Applicant.

Mr. I.G. Cross & W.S. Cheung for Crown /Respondent.