Chiu Yau Fat v. The Queen
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CACC001101/1980
IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 1101 of 1980 -----------------
Coram: Cons J.A., O'Connor and Silke JJ. Date of Judgment: 9th July 1981 ----------------- JUDGMENT ----------------- Silke J. 1. The appellant was convicted of two counts of robbery and sentenced to six years and seven years imprisonment respectively, the sentences to be concurrent. He now renews his appeal against sentence, leave having been refused by the Single Judge on the 9th April 1981. 2. The first robbery took place at a flat in Cape Mansions at 7. 45 a.m. on the 30th January 1980. Three persons including the appellant were involved, a beef knife was used and the victims were tied up with wire, blind folded and gagged. Cash and numerous items including wrist watches, radio cassette recorders and tape recorders were taken. The appellant, apart from being present in the flat, also drove the getaway car. 3. The second robbery took place in a flat in Cloudview Road on the 10th February 1980 at 5.25 p.m. Again three persons were involved, knives were used, the victims were tied up with wire and gagged. It was accepted that the appellant waited outside the block to drive the getaway car. He is a professional driver. 4. In the course of that robbery gratuitous violence was used towards the head of the household and a highly unpleasant sexual assault was perpetuated upon a fourteen years old girl by one of the robbers. 5. A quantity of photographic equipment, together with a starting pistol a .25 pistol and a .25 ammunition, was taken. 6. The appellant was arrested on the 14th February 1980 while in the process of pawning some of the photographic equipment. 7. In passing the sentence the learned Commissioner bore in mind the cooperative attitude of the appellant after his arrest - he informed the police of the taking of the pistols of which they were not aware - and the appellant's pleas of guilty. 8. The appellant had one previous conviction in 1968 which the learned Commissioner quite rightly disregarded and he was asked to take two offences into consideration. These were referred to as "thefts" on the record but the first, on the 25th November 1978 was really dishonest appropriation and the second, between the 25th and the 30th January 1979, embezzlement. 9. The Commissioner also gave consideration to the invasion of a private home entailed in both the robberies, the violence used towards the victims, the use of knives and that, while he was not present in the flat at Cloudview Road, the appellant must bear at least part of the responsibility for that which took place in it. 10. We do not feel in the circumstances here that the sentences were in any way excessive and leave to appeal is refused. 11. There is however one other matter. The appellant in his first ground of appeal complains that the Commissioner for Prisons would only allow him "remission of one third of the time spent in custody from the date of committal". Remission is not a matter for this Court it lies entirely within the province of the Commissioner. However it emerged in the course of the Appeal that the appellant's real complaint might well relate to the time between his arrest on the 14th February and his committal on the 8th August 1980, a period of almost six months for which he would receive no credit under the provision of section 67A of the Criminal Procedure Ordinance Cap. 221. Sentence was passed on the 1st December 1980. Section 67A reads:
12. Mr. White tells us that committal proceedings were delayed as another defendant was arrested and the original hearing date of the 19th May 1980 was vacated. 13. In the Court below Counsel for another defendant asked that the sentence on his client run from his client being "arraigned before the Court". 14. The learned Commissioner having made reference to time being automatically deducted then went on :-
15. This with respect to him is not wholly correct - it is only the time running from the happenings set out in section 67A which is treated as reducing the term of imprisonment imposed. 16. Here that time is from the committal on the 8th August. 17. While the section appears to contemplate that a reasonable period spent in custody should not go towards a statutory reduction, the appellant here was in custody for an unusually long time from arrest to committal through no fault of his own. We think some allowance should be made for this and we direct that a period of one hundred and twenty days be added to the periods set out in subsection (2) of section 67A. The intended effect is that the appellant be given credit for one hundred and twenty days in addition to the period between committal and sentence for the purpose of reduction of the length of the terms of imprisonment imposed. 18. In the event leave to appeal against sentence is refused but the 120 days is added to the statutory period of reduction. Representation: Appellant in person Mr. White for Crown. |