Nguyen Van-dang and Another v. R.

CACC000108/1994

IN THE COURT OF APPEAL

1994, No.108
(Criminal)

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Coram: Hon Bokhary, J.A., Wong and Stuart-Moore, JJ in Court

Date of hearing: 26 October 1994

Date of judgment: 26 October 1994

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J U D G M E N T

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Stuart-Moore, J. giving the judgment of the Court:

1. On 18 February 1994 these applicants were convicted of three counts of robbery after trial before His Honour Judge Burrell, sitting as a deputy judge of the High Court with a jury. On each count, both defendants received concurrent sentences of 8 years' imprisonment. It was against those sentences, imposed on 22 February 1994, that the applicants now apply for leave to appeal.

2. The facts relating to all three robberies could not have been more straightforward and each of them had a very close resemblance. They were committed in the early hours of the morning of 29 June 1993 on victims who were inhabiting two of the huts at Whitehead Detention Centre. In monetary terms, the property involved was not very great, being US$400 and some pieces of jewellery in the 1st count, HK$600 in the 2nd count, and US$200 and some pieces of jewellery in the 3rd count. On the other hand, to the victims who lost this property this would have represented a very serious loss indeed. These applicants were robbing people who had very little in the way of material wealth. In addition, each victim was subjected to actual violence and to a very considerable threat of further violence by this gang of approximately 10 men, inclusive of the two applicants who were responsible for these robberies.

3. In the 1st count, the victim was awoken by five men at his bedside, and he was able to recognise these two applicants amongst them. Outside the hut were five more men, armed with poles and home-made knives. It was the 2nd applicant who stabbed the victim in the ankle and hit him on the head. In the result, the victim passed over some of the property that was stolen to the 1st applicant, and the rest of the property was taken from a bag by some of the masked men.

4. The 2nd count of the indictment was no less frightening to the victims of the robbery. Here, a husband and wife at 4.30 a.m. found themselves being woken up by a group of men, some of whom were masked. Two of them jumped into the victims' bed-space, demanding all of their money. The husband was stabbed to the left of his body and on his shin. He described seeing his wife being severely beaten by the gang. The female victim of this robbery testified that about ten people were amongst the gang who attacked herself and her husband. She was stabbed in the head and on the shin, aside from being subjected to dire threats that she would be killed if she did not part with her money.

5. As to the 3rd count, the victim again was subjected to a rude awakening by the gang. He was stabbed in the side and threatened by those in the large group of armed men who invaded his bed-space. The curious feature of this robbery, closely resembling what had happened in count 2, is that the robbers removed their masks, one by one, saying in effect "Remember my face, I am leaving tomorrow". It was because of this that the victim in count 3 was able to identify the 1st applicant as the robber who hit him on the head with a pipe, and the 2nd applicant as the culprit who had stabbed him. These were highly unpleasant robberies, committed on people who had no chance at all against such large numbers and in such circumstances. All of the victims had to re-live the experience by giving evidence at the trial. These victims, who were wounded and robbed, were the fellow citizens of these applicants at Whitehead Camp and who, like these applicants, had fallen on hard times. The applicants will have known how precious the belongings that they stole were to those who owned them. The method used in these robberies was designed to maximise the fear on the part of each victim and to bring terror and panic to their families because they all had children.

6. We are left wholly unimpressed by the submissions of the 2nd applicant that what he did was for a few extra luxuries for his child. There were children present when these crimes were committed. Neither applicant has shown any remorse for what he had done because they contested the case to the bitter end. In the result they could receive none of the credit they would have received had they pleaded guilty and admitted their crimes. Had they done that, they would have been entitled to a substantial discount. We have borne in mind what they had to tell us today, and the learned trial judge also bore all the relevant factors in mind when he passed sentence.

7. We are grateful to Mr Zervos for the research that he has done into cases of a similar kind to this. We are reminded of the case in which some guidelines were set down by this Court in the case of Mo Kwong Sang v. R. [1981] HKLR at p.610. These sentences were entirely in accordance with those guidelines. We cannot find that they are to be faulted in any way. Accordingly, these applications for leave to appeal against sentence are refused.

Representation:

Mr Kevin Zervos, SCC for Crown/Respondent

1st Applicant: NGUYEN Van-dang, present, unrepresented

2nd Applicant: PHAM Van-tuan, present, unrepresented