R. v. Choi Wai Leung and Another

CACC000523/1992

IN THE COURT OF APPEAL

1992, No. 523
(Criminal)

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Coram: Hon. Macdougall and Litton, JJ.A. and Leonard, J.

Date of hearing: 7 July 1993

Date of judgment: 7 July 1993

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J U D G M E N T

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Litton, J.A.:

1. This is an application for leave to appeal against sentence by Chung Hon Wah who was the second accused in District Court proceedings. He was convicted and sentenced on 7 December 1992 on his own plea by Deputy Judge To on one charge of robbery. The offence occurred on 22 October 1992 when this applicant together with the first accused Choi Wai Leung gained entry into office premises at Flat E on 9/F of No. 35 to 45 Bonham Strand East by the first accused pretending to be a messenger. The two accused were armed with knives. The occupants were threatened with the knives, tied with plastic handcuffs which the accused had brought with them. The applicant, knife in hand, stood guard over the victims whilst the first accused ransacked the premises and items of value were stolen including cash in various currencies amounting to HK$220,000, portable telephones, a ring and a Rolex watch. The police were in fact alerted in the course of that robbery and arrived at the premises and the defendants were caught red-handed.

2. The judge took the view that this was a planned and premeditated robbery with violence intended from inception, the defendants having gone there with gloves, handcuffs and knives. They had plainly surveyed the premises before the robbery took place. The applicant at the time of the robbery was aged 20 years. The first accused aged 21. The applicant had a clear record. He came from a good family who were farmers in the New Territories and his family members were gainfully employed.

3. The judge was guided by the decision of this court in Mo Kwong-sang [1981] HKLR 610 and considered that a starting point of seven years' imprisonment for the offence was appropriate.

4. In our judgment this was plainly a correct decision in the circumstances. This was a serious robbery. Knives were used. The victims were threatened with physical violence. Having regard to all the circumstances including the guilty plea the judge considered a discount a 15% appropriate and sentenced this applicant to six years' imprisonment. On the face of it there can be no criticism of the sentence imposed.

5. Counsel's argument on behalf of this applicant in this court is this. That there should be internal consistency in sentences between the two accused. The first accused had previous convictions and the judge took him as a man who had shown no remorse and yet the first accused was only sentenced to four and a half years' imprisonment; this, says counsel, gives this applicant a legitimate sense of grievance. We must therefore examine the circumstances in which that sentence of four and a half years was imposed on the first accused.

6. What happened was this. Whilst the first accused was on bail he was a party to a conspiracy to commit a robbery and had, about a month before being dealt with by Deputy Judge To, been sentenced by another judge in District Court case No. 189 of 1992, to two years' imprisonment. The judge in sentencing the first accused considered the totality principle and considered that a total sentence of eight years would have been appropriate. However, he thought his jurisdiction was limited to seven years and therefore, having regard to the sentence of two years in relation to District Court No. 189 of 1992, a total sentence of six and a half years would have been appropriate. He thought the sentence for this offence should be consecutive to the sentence of two years and accordingly sentenced the first accused to four and a half years. In relation to that sentence the first accused has applied to us for an adjournment of his appeal which we granted a few minutes ago. The reality of the situation is therefore this. As the judge viewed the matter, the sentence in relation to the first accused amounted to a total of six and a half years for the two offences; this compares with a sentence of six years in relation to this applicant. It is inappropriate to say anything more about the sentence on the first accused since that is a matter still under appeal, but as far as this applicant is concerned we can see no error in principle, nor is the sentence of six years' imprisonment manifestly excessive for the offence involved. This application must therefore be dismissed.

Representation:

Phillip Ross, Crown Prosecutor for Crown

Ms. C. Draycott (M/S Howell & Co.) for D2 - CHUNG Hon-wah