Ng Siu-fung and Another v. The Queen

CACC000558/1982

BETWEEN

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Coram: McMullin V.-P., Li & Silke, JJ.A.

Date: 10 November 1982

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JUDGMENT

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Silke, J.A. :

1. NG Siu Fung and CHOW Shu Kee were convicted on their own pleas of the offence of robbery. Chow was convicted, also on his plea, of the further offence of wounding with intent to do grievous bodily harm. Ng was sentenced to a period of seven years' imprisonment: Chow to a period of seven years' imprisonment for the robbery and of three years' imprisonment for the wounding. Those sentences being consecutive gave a total of ten years.

2. Ng renews his application for leave to appeal against sentence: Chow appears before us, by leave of the single judge, and also appeals against his sentences. Mr. Huggins appears for both of them.

3. The robbery took place in a domestic premises at about 9.30 on the evening of the 7th November of 1981. Two men, armed with beef knives, tied up the occupants, one a seventy-year-old Indian woman the other a twenty-three-year-old amah. They ransacked the house and stole a considerable quantity of jewelry and some cash.

4. As the two men were leaving the premises they encountered the watchman. He was attacked by Chow and suffered severe injuries resulting in the subsequent amputation of a finger. Ng made good his escape during this part of the incident.

5. At the trial the Crown saw fit to offer no evidence on the wounding charge as against Ng. The trial judge accepted this course. The basis for the action of the Crown was stated by Counsel, who then appeared, to be

"that there appeared to be a consistent denial by D1 throughout such evidence as is available and that is supported by D2 who, at various stages, not only in his statement, but also in the committal proceedings, has made statements which appear to exonerate him (Dl) from any practical involvement in the chopping."

The trial judge accepted the course the Crown invited him to take

"........in view of the fact the Crown has no evidence against the 1st accused on the second count",

and acquitted Ng.

6. Mr. Huggins, in advancing that which is his only real argument in respect of Ng, places great emphasis on the "no evidence" remark by the trial judge.

7. His argument is this: that in the light of the circumstances here the Crown, by its concession, must have accepted that Ng had no intention at any time in the course of the robbery of using the knife he carried - that is using it to inflict injury - should the robbers meet resistance. It is only if this is accepted, he says, that the action by the Crown becomes understandable.

8. He goes on that if this be so, then the trial judge should, in passing sentence, have allowed a reduction from the sentences set out in the guideline case of Mo^(l) to reflect that which Mr. Huggins suggests is a highly unusual circumstance.

9. At first sight that submission is an attractive one. But with respect to Mr. Huggins we do not think it to be correct.

10. Ng did carry a knife. That knife was used in the sense of providing a threat. The ladies who were threatened were not to know, if in fact it be so, that Ng did not intend to carry out the threat implicit in the appearance of the knife. Had it been used to inflict injury, then the trial judge would have been justified in increasing the sentence which he did pass.

11. Allowance was made for the guilty plea. Mo^(l) makes reference to the carrying of knives displayed in an invasion of private premises, with physical violence being used on the occupants and suggests, after trial, a sentence of seven years' imprisonment to be appropriate in those circumstances. Mo^(l) further suggests that aggravating circumstances: such as the invasion of the domestic premises being carried out during the night, the presence of more than one person in the group of robbers and the ill-treatment of the elderly: are factors which should lead to the increase of the guideline sentences.

12. We do not think the sentence imposed on Ng to be excessive and we are not persuaded by Mr. Huggins' argument that, in the circumstances, here the trial judge erred in principle.

13. The application for leave to appeal is refused.

14. Chow was aged seventeen years and ten months at the time of the offence and eighteen years and five months at the time of trial. We are very conscious of his youth and of the reluctance of this court, or indeed Courts of First Instance, to condemn a youth to a long term of imprisonment for a first offence.

15. Mr. Huggins has pointed out to us that the sentence imposed here is two thirds of the time the appellant has already spent upon this earth. He has referred us to Thomas on Sentencing, 2nd ed., and the references therein to sentences passed upon youths where violence was involved. He does not advance this as an authority but simply as an indicator.

16. The principles in Thomas are of course distilled from the sentences passed in English courts. Such sentences are different from those passed in Hong Kong.

17. In passing the sentence he did the trial judge, having called for and considered a Probation Report and a report from the Commissioner of Correctional Services, did have in mind the age of the appellant even though Chow gave the appearance of being physically more mature than the older Ng. He thought Chow to be the moving force behind and the instigator of the robbery.

18. As we have said the injuries to the watchman were severe: multiple lacerations on top of his head, a laceration on the right side of his neck, one on his chin, one on his left cheek, a number of lacerations on his left and right hands and with part of the left index finger chopped off - this necessitated the subsequent amputation.

19. The trial judge quite rightly assessed his sentence on an overall basis considering the correct totality to be ten years.

20. We may be considered as over merciful but we think some greater discount should have been given for the plea of guilty, the assumption by Chow of full responsibility for the attack upon the watchman and, above all, his youth. We consider a sentence of eight years in total to be appropriate with particular reference to the youth of the appellant.

21. Chow' s appeal is therefore allowed and to give effect to the view we have just expressed we reduce the robbery sentence of seven years to one of six years and that imposed or the wounding from one of three years to one of two years. The latter is to be consecutive to the former. Totality is eight years.

(1)    (1981) H.K.L.R. 610

Representation:

Mr. A. Huggins instructed by Messrs. Chan & Cheng for the Appellants.

Mr. M.A. McMahon for Crown/Respondent.