Attorney General v. Lee Ching Kwong
Read the full judgment text of CAAR 5/1987 on BabelCite. This Court of Appeal judgment.
1. By these proceedings we are invited to review sentences passed in February this year upon Lee Ching Kwong by His Honour Judge Ryan sitting as a Deputy Judge of the High Court. Lee, whom we will call "the Defendant", had pleaded guilty to five counts. The first concerned a robbery, on the 6th August last year, at the home of the Defendant's previous employer. The Defendant had been working for one year in a restaurant but had been dismissed for a bad attendance record, a habit he seems to have
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IN THE COURT OF APPEAL 1987, No. 5 BETWEEN
Coram: Hon. Cons, V.-P., Fuad & Hunter, JJ.A. Date of hearing: 29th May, 1987. Date of delivery of judgment: 29th May, 1987. _______________ JUDGMENT _______________ Cons, V.-P. delivered the judgment of the Court: 1. By these proceedings we are invited to review sentences passed in February this year upon Lee Ching Kwong by His Honour Judge Ryan sitting as a Deputy Judge of the High Court. Lee, whom we will call "the Defendant", had pleaded guilty to five counts. The first concerned a robbery, on the 6th August last year, at the home of the Defendant's previous employer. The Defendant had been working for one year in a restaurant but had been dismissed for a bad attendance record, a habit he seems to have formed when still at school. He had gone to his employer's home by appointment in order to pick up the balance of the wages that were due to him. Unfortunately a dispute arose as to what was the correct amount to be paid. The argument became very heated, so heated in fact that the police were called. Before they arrived the Defendant thought fit to leave, only to return as soon as the police had gone. Then, suddenly, he pulled a chopper out of the bag which he had with him and demanded $2,000. Under the threat of the chopper the money was paid over to him. But not content with that he forced the whole family, which included two young children and two servants, into one of the bedrooms. There he collected their money as well, using the chopper to slash their pockets to make sure that they were not concealing anything from him. All told he netted nearly $6,000, a sum of money which he soon expended in a bout of riotous living. 2. Five days later, in need then of more money, he attempted to rob a bank, the Dao Hang Bank in Hennessy Road. Brandishing an imitation pistol he passed a note to one of the tellers demanding $100,000. Taken by surprise she called her supervisor, whereupon the Defendant turned tail and fled, discarding the imitation pistol as he ran. Hence the second and third counts, for attempted robbery and possession of an imitation firearm. 3. Having failed in that attempt, about an hour and a half later he entered a building in Des Voeux Road Central and installed himself in the lift. When later a, lady entered at the 9th floor, intending to go down, the; Defendant produced a knife and declared it to be a robbery. She gave him her handbag, which contained cash, credit cards and so on. He pushed her out when, the lift reached the 3rd floor and himself carried on down to the ground, but she, being a very brave lady, ran down the stairs to the street where she chased after and attacked the Defendant with her umbrella. He need not go into the details of the chase that followed as he attempted to escape. Suffice it to say firstly that it was a long chase, in which several good citizens joined before the Defendant was apprehended by the police; and secondly that at a fairly early stage the Defendant suddenly turned round upon the lady and twice stabbed her with the knife that he used to threaten her in the lift. Hence the fourth and fifth counts of robbery and wounding. 4. The sentences that were imposed by the judge were respectively 6½, 5½, 1½, 6½ and 1½ years. In passing those sentences the judge had the benefit of a probation officer's report and an eloquent speech in mitigation, which referred, amongst other things to the Defendant's unfortunate upbringing, the difficulties he had encountered in Hong Kong since he came here illegally from Taiwan in 1983 and the fact that until now he has had a clear record in Hong Kong. 5. In respect of each sentence the judge made a substantial allowance for the mitigating factors, in particular the plea of guilty. Personal considerations, as has often been said in this Court, count for very little in crimes of this nature. 6. The judge ordered that all the sentences should run concurrently. He gave no reason for his decision. If he were thinking of the totality of the sentences then we would, with respect, say that the total of 6½ years was manifestly inadequate. 7. The basic principle as to whether sentences should be consecutive or concurrent has been well established for a long time now. It has been restated many times in this Court. The most recent was this year in R. v. Dominic Cheung[1]. An earlier example, drawn to our attention by the Crown, is R. v. Lui Shu Tong[2]. We may conveniently read out from the headnote, which accurately sets out what is said in the judgment following –
Had the judge applied that principle he could not have failed to realize that although Counts 2 and 3 may properly be said to form within themselves a single transaction, by no stretch of the imagination could that be said of the whole five counts. It may be thought at first glance that the 4th and 5th counts should go together, but the authority of R. v. Chan Kin Chung[3] makes it clear that that would be a wrong approach. In that case an act of chivalry on the part of a male victim of a robbery to protect one of the female victims was rewarded with a knife wound in the chest. In his judgment the Chief Justice said this -
We would respectfully accept that as a true appl1cation of the basic principle and one which should have been applied in this case as well. 8. If all the sentences in this case had been made consecutive the total would have been 21½ years. That would have been too heavy a sentence. Looking at the totality of the criminal behaviour and making allowance for the pleas of guilty and the other mitigating factors, we think an appropriate total sentence in this case would have been 12 years. The most convenient way to reflect that would have been to make the sentences on Counts 1 and 2 consecutive, and on the remainder, concurrent. However as these proceedings are by way of review we must, in accordance with our usual practice, reduce that to some extent, which we shall achieve by some degree of overlap. 9. For the reasons given we would therefore allow this application and vary the sentences passed below to the extent that the sentence on Count 2 shall commence 4½ years after the sentence on Count 1, making a total overall of 10 years.
A.P. Duckett, Q.C. and Miss Caroline Ravenscroft (Legal Department) for Applicant Robert Whitehead (assigned by D.L.A.) for Respondent [1] Application for Review No. 1 of 1987 [2] 1961 H.K.L.R. 129 [3] 1980 H.K.L.R. 642 |
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