The Queen v. Yiu Hin Mo

CACC000107/1988

BETWEEN

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Coram: Hon. Cons, V.-P., Clough & Power, JJ.A.

Date of hearing: 3rd June, 1988.

Date of delivery of judgments: 3rd June, 1988.

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Courts:

1. On the 8th October last year a young lady aged 19 was taking an afternoon sleep on the sofa of her flat in King's Road, North Point. She awoke to find the Defendant next to her, with a plastic bag over his head and a knife in his hand. He forced her into the bedroom where he demanded that she should take down her shorts so that he could, as he put it, have a look. Very courageously she refused. He then demanded that she took off a gold finger ring she was wearing, which she did. Up until that moment she had been alone in the flat, but fortunately her brother, aged 17, and her cousin aged 13, then returned. The three of them were able to overpower the Defendant. He managed to escape from the flat, but was caught on the l8th floor. The flat in question is on the 22nd.

2. The Defendant is a litter warden employed by the Urban Services. In his evidence he said that when going along King's Road to his mother-in-law's house he noticed a man whom many years earlier he had summoned for littering but who had not turned up in court. He therefore followed the man into a building so that he could find out his address and in due course issue another summons. Unfortunately he lost the man somewhere on the 22nd floor, but observing a flat of which the wooden door was partly opened, although the grille was closed, he looked through to see whether the man he was pursuing was inside. At that moment two young men, one holding a knife, flung open the grille and pounced on him, accusing him of peeping at their sister.

3. In due course he was tried for robbery before Her Honour Fi-Lan Chua in the District Court. She found him guilty. Against that finding he now seeks leave to appeal.

4. Mr. McGuinniety, who appears for him today as he did below, has addressed us at length in support of the application. He has referred to many factors, all of which could very properly have been put to the judge below, and a majority of which were, when one looks at the record, so put. Having reserved her decision she dealt with those points in a very careful, methodical and well reasoned judgment. She did not believe the Defendant. She did believe the three prosecution witnesses, that is the victim, her brother and her cousin. These witnesses were very fully cross-examined at the trial, so she had ample opportunity to assess their value as witnesses. That is her duty as a judge of first instance. We do not find it possible to fault in any way whatsoever the manner in which she carried out her duty. Nor do we have a lingering doubt, or indeed any doubt, as to the correctness of her conclusion. The application for leave to appeal against conviction is dismissed.

5. The sentence imposed upon the Defendant was imprisonment for 5½ years. In normal circumstances, for robbery in a private flat with the aid of a knife, that would be a very proper sentence. However, on the facts as we have just outlined there, the circumstances clearly were not normal. Although technically a robbery, it is highly unlikely that it was committed for financial gain. We have had, as the judge did below, the benefit of a very helpful probation report. It shows that otherwise the Defendant is a perfectly normal family man, aged 35 with two young children, an apparently happy family and a steady job. The judge observed, and we quote her words -

"    The law takes a very dim view of anyone going into a house and holding up its occupants or an occupant with a weapon."

We would not seek to detract from that in any way. Conduct of this kind must be discouraged. But we feel that in the very peculiar circumstances of this very peculiar case, a sentence of four years would have been sufficient.

6. We therefore give leave to appeal against sentence, treat this hearing as the appeal itself, allow the appeal and reduce the sentence imposed to one of that amount.

Representation:

E.L. McGuinniety (M/s David K.W. Tsang & Co.) for Applicant

J.R. Sulan, Crown Prosecutor for the Respondent