Ng Hoi-keung v. The Queen

CACC000522/1979

Coram: Court of Appeal (McMullin, J.A., Leonard & Li, JJ.)

Date of Judgment: 14 February 1980

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JUDGMENT

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McMullin, J.A.: I turn now to the appeal against sentence.

1. The appellant has seen fit to appeal against his sentences in these cases. We propose to interfere in the manner which will appear because of the features of the final crime in the series which we think obliges and justifies this interference.

2. The learned judge had in mind the question of the totality of the sentence which he thought appropriate to this series of grave offences. For the robberies other than the Williamson robbery the appellant received in respect of them sentences of eight years.

3. With these sentences no quarrel can be taken. They involved most of the aggravating features which attract heavy sentences in such cases. The invasion of a private home by a number of armed men; the fear and indignity inflicted upon the inhabitants by binding them and ransacking the premises in their presence and the taking of valuable goods. However, when it came to the final event in that series of crimes the judge found himself confronted with some difficulty. He had evidently formed the opinion that the overall sentence should be ten years. He therefore considered that the advisable course was to impose a sentence of six years for the rape and four years for the robbery. These sentences to be consecutive to each other and concurrent with the other sentences of eight years which also are concurrent with each other.

4. We have given serious thought to the sentences thus imposed and on consideration we have come to the conclusion that the final crime in that series was one of such an atrocious nature that taken together with the other offences, all of which were in themselves grave robberies, the totality thus chosen by the trial judge was inadequate in the circumstances.

5. The crimes committed in the Williamson premises on the 10th of October are the culminating events in robberies of a planned and ruthless kind in which a gang of cat-burglars terrorized Chatham Court for a period of over a month.

6. The appellant was, as the judge found, the ringleader in the several robberies which preceded the Williamson case. On each of those occasions the gang, numbering from 3 to 6 men broke in by night and bound and gagged the occupiers at knife-point, including on one occasion, 3 small children. Large quantities of valuable property were stolen.

7. The final episode involved at least three armed men. The victims in this case were not only bound in the usual way but were actually beaten. The complainant's arms were so tightly bound that she bore the marks of bruising for several weeks. They were held in that way for a considerable time while their premises were being ransacked and when the proceeds of the robbery proved unsatisfying to the invaders this appellant, whether for motives of lust or spite or a combination of both, decided to take his activities one step further.

8. I need not recite the gross details of the rape. It is sufficient to recall that the victim was bound and blindfolded. She appealed in vain for help to her husband who was likewise bound and lying beside her on the same bed. Then in the presence of her husband this appellant, forced himself most brutally upon this helpless young Japanese woman in such a way that everything that was going on must have been clearly apparent to her equally helpless husband. It is needless to elaborate the circumstances further.

9. The appellant is thirty-six years old. He was convicted of burglary in 1973 and received a sentence of two years. His younger confederates in the present case each received a sentence of 6 years in respect of the single charge proved against him. This appellant was convicted of robbery on five counts involving four different premises on different dates. The final robbery was that at the Williamson premises.

10. We have come to the conclusion that the sentences imposed were in their totality inadequate. We allow the appeal. The sentence of four years for robbery on the 10th October will be set aside. That will be increased to eight years. That sentence will run concurrently with the other robbery sentences of eight years. The sentence of six years on the rape will remain but it will run consecutively to the other sentences making in all a total of 14 years.

Representation:

Appellant in person.

Alderdice for Crown/Respondent.