The Queen v. Sin Cheong-shing and Another

CACC000595A/1983

IN THE COURT OF APPEAL

BETWEEN

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

Date: 30th September 1983

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JUDGMENT

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Silke, J A.:

1. We have dismissed the application for leave to appeal against sentence by the 2nd defendant, 2nd applicant. He has in effect abandoned his application informing us that the only reason why he came before us at all is to attempt to exonerate Sin Cheong Shing, the 1st applicant. He says he framed him. There is, however, one matter to which I would wish to refer.

2. The sentences were passed in respect of eight counts of robbery and one charge of burglary. The defendant pleaded guilty to all these counts at the conclusion of the voir dire proceedings at trial. He received a sentence -of 7½ years on each of the eight robberies, concurrent, and a sentence of 3 years in respect of the burglary, concurrent with the robbery sentences, giving a totality of 7½ years.

3. His Counsel in the Court below saw fit to propose the following proposition to the trial judge:

"So, My Lord, my submission therefore is that the defendant can only be sentenced in respect of the offences to which he has pleaded guilty and the Court ought not to take into account the much larger sums of money which were later obtained from the banks."

4. The facts behind that submission were that, in the course of the robbery, various bank passbooks and personal chops of the owners of the passbooks were stolen and these were subsequently used to withdraw money from the bank accounts of those persons from whom they had been taken.

5. That proposition was, somewhat unfortunately, accepted by Counsel then appearing for the Crown. He took the view that, in order to bring into the net of sentence the moneys which were obtained in the banks, it would have been necessary to lay further charges. The trial judge went on to sentence on the basis of that proposition. We think, with respect, that the approach was quite wrong.

6. That fact that these chops Arid passbooks were stolen in the course of the robbery and subsequently used in order to obtain cash was part of the matrix of the facts of the robbery itself and was not something which was entirely different therefrom so as to create a separate offence.

7. In passing sentence a court should bear in mind, amongst other things, the proceeds that come from a robbery and those proceeds would include the moneys obtained from a bank at a later stage as in the circumstances here.

8. The sentences passed could have been substantially greater. However we do not think it proper to interfere with them in the unusual circumstances here. The applicant can consider himself somewhat fortunate.

Representation:

Applicant YIM Kwok-keung in person.

I.M. Duguid, Esq. for Crown/Respondent.