The Queen v. Kwok Kai-chun

CACC000485/1987

BETWEEN

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Coram: Hon. Silke, V.-P., Barker, J.A. & Penlington, J.

Date of hearing: 12th January, 1988.

Date of judgment: 12th January, 1988.

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J U D G M E N T

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Barker, J.A.:

1. The applicant in this case originally applied for leave to appeal against both conviction and sentence but this morning he applied to us and we granted his application to abandon the application for leave to appeal against conviction. Accordingly we are concerned only with the application for leave to appeal against sentence and we are greatly obliged to Mr. Duncan Percy for the assistance which he has to the Court.

2. The applicant was found guilty of two offences. The first was of false imprisonment contrary to Common Law, it being alleged against him that on or about the 28th June 1986 inside a wooden hut at the Luen Hing Construction Company at Lau Fau Shan he, together with others, unlawfully and injuriously imprisoned Vanichakom Kanya and detained her against her will. He was further found guilty of robbery in that on the 28th June 1986 inside a wooden hut at that same Construction Company he, together with ethers robbed Madam Kanya of a Standard Chartered Bank cash cheque face value HK$2,000.

3. The learned judge sentenced him to terms of seven years' imprisonment on the false imprisonment count and five years' imprisonment on the robbery count. such sentences to run concurrently. The applicant was probably fortunate not to he charged with the more serious offence of abduction and it is one of Mr. Percy's contentions that the learned judge ought to have confined himself to the limit of the actual charge of false imprisonment namely inside a wooden hut. We do not think that a judge can so circumscribe his attitude when he comes to sentence. He is, in our view entitled to consider the general background. Nevertheless, it has to be remembered that false imprisonment is an indictable misdemeanour contrary to Common Law and therefore the seven years' imprisonment was the maximum that the judge was permitted to pass on that count. It was a serious case but we can conceive of more serious cases of false imprisonment. The imprisonment lasted in this case for something like twelve hours. The applicant was not physically present when the robbery took place although by their verdict the jury found that he was a party to the common enterprise to extract money from nor was the applicant present when other and far more serious offences were committed against Madam Kanya. The others were separately tried and on the false imprisonment counts they were sentenced to seven years' imprisonment and the judge said when he sentenced the accused:-

" I don't think his liability in this respect. That is of having his wife taken to Lau Fau Shan and there detained is any less than the liability attached to the other man and accordingly the sentence in respect of the first count will be seven Years' imprisonment."

4. We are of the view that there is distinction to be drawn. We are of the view so far as this applicant is concerned a proper sentence on the false imprisonment count would have been one of five years.

5. No complaint is made about the sentence of five years on the robbery count and the sentences were ordered to run concurrently. We take the same view that the sentences should run concurrently.

6. Accordingly the application for leave to appeal against sentence is granted. We treat the hearing of the application as the hearing of the appeal we set aside the sentence of seven years' imprisonment which was passed on the first count of the indictment and substitute therefore a sentence of five years' imprisonment. That sentence is to run concurrently with the five years' imprisonment which had already been passed upon him in the robbery charge.

Representation:

Applicant in person in respect of conviction.

Duncan Percy (D. L. A. ) for Applicant in respect of sentence.

Andrew A. Bruce. Senior Crown Counsel F, Valentine Yim, Crown Counsel for Crown/Respondent.