The Queen v. Wong Tak

CACC000638/1983

BETWEEN

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

Date: 15th May, 1984

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JUDGMENT

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McMullin, V.-P. :

1. The applicant was convicted of robbery and of possession of an imitation firearm with intent to commit an arrestable offence.  Earlier this morning we dealt with his application for leave to appeal against his conviction in respect of which he appeared in person.  We dismissed that application.

2. Mrs. Penlington appears for him this morning on his application for leave to appeal against sentence.  He received a sentence of three years on the robbery count and of six years on the possession of the imitation firearm count, under s.18 of the Firearms and Ammunition Ordinance.

3. Mrs. Penlington asks us to say that the Judge approached the matter of sentence upon a wrong basis and that these sentences are altogether too high in relation to the total criminality of the events disclosed.

4. The robbery was a staircase robbery, in the course of which no weapons were proved to have been used, but in which a young woman who was robbed of a watch and a bracelet was approached by the applicant who put his arm around her neck, subdued her in that way and then removed her property.  He was not immediately apprehended for that offence and he was never identified by the victim but subsequently, about a month later, he was arrested outside a department store by a couple of police officers who were checking identity cards and who had seen him leave the store and then go back towards it.

5. Upon being searched, it was discovered that he had the imitation weapon which is the subject of the second charge, strapped to his leg, concealed by his trousers.  He was arrested and taken to the police station where he made statements which were admitted in evidence.  One statement was a confession to the robbery.  The other was a confession couched in the following terms in respect of the imitation firearm: "Because I am out of a job and unable to make a living, I therefore thought of carrying it to scare people to make money."

6. In passing sentence, the Judge said that although robbery is a serious offence, he did not deem this instance to be of a particular serious character.  He then went on to consider the fifth count, the Section 18 count.  He said: "I have come to the conclusion that you are deserving of an overall sentence of nine years' imprisonment."  Mrs. Penlington has referred us to the principles relating to the imposition of sentence when totality is in question.  We have no quarrel with the principles which she put forward relating to when a Judge is coming to his conclusions on that basis.  The Judge should consider the individual offences separately and estimate the sentence appropriate to the gravity of the individual offence and then, when considering totality, he should address his mind to the question: "Do these sentences when added together amount to more than the total criminality deserves?"

7. It is suggested that the Judge began at the other end of this procedure and thought of the totality and then appropriated three years to the robbery and six years to the other offence.

8. However, we do not think it can be said that he misunderstood the totality principle, or that he wrongly applied it.  Clearly he did regard the imitation firearm charge as being the more serious charge.  Although these were offences which occurred one month apart, totality was nevertheless a factor to be considered, although not quite in the same way as that factor is considered where there occurs a series of offences about the same time and of varying degrees of gravity and quality.  We think that what the Judge was doing, although he did not expressly say so, was to come to the conclusion that six years under the s.18 charge was the appropriate quantum for that offence and the question then is whether that was the proper view of the circumstances disclosed here.

9. Mrs. Penlington has referred us to the decision of this court in criminal appeal No. 991 of 1981, in which the applicant had been convicted of an offence of robbery and had received a sentence of six years.  He was in the company of other persons, one of whom had an imitation firearm.  The trial Judge in passing sentence, imposed a six months sentence on the imitation firearm charge to run concurrently with the six years imposed for robbery.  Not unnaturally, Mrs. Penlington asks us to say that there is so total a disproportion between that sentence and the sentence imposed in the present case, that the present sentence simply cannot be regarded as situated upon anything like the proper scale.

10. We must point out that in Hui Chou-hoi, what the court was primarily concerned with was the robbery charge and the sentence imposed therefor.  The imitation firearm possessed by the accomplice in that case had been carried in the course of the very offence of robbery which attracted the major sentence.  The court was concentrating on the principal offence.  We must make it clear that the propriety of the six months sentence does not seem to have been debated before us. Totality was the issue.  Nothing that was said in the judgement in that case can be taken as suggesting that the court considered that a sentence of six months is appropriate for a s. 18 offence.

11. The Court in that case took the unusual course of reducing the overall sentence of six years to three years, in view of what it regarded as a demonstration of genuine remorse, and it pointed out that the case must not, in any event, be used as a headline even in respect of the robbery offence.

12. Even more, we must emphasize that it must not be regarded a headline in respect of the appropriate scale of sentence in charges taken under s. 18 of the Arms and Ammunition Ordinance.

13. Again, Counsel has pointed out that sentences of five or six years have in many instances been imposed, and not upset on appeal, where charges of possession of real firearms or ammunition have been concerned.  We pointed out in the course of the argument that those cases concerned simply possession of such weapons or ammunition, charges that is to say under s.13 of the Ordinance.  We cannot regard those as an appropriate guide as to what is the proper sentence in charges taken under s.18.  The maximum under s.13 is ten years, the maximum under s.18 is 14 years. The latter section covers possession of real arms as well as of imitation arms where there is demonstrated an intent to use them for a criminal purpose.  The legislature, in other words, has made it very clear that imitation firearms - which nowadays are produced in such forms as to present a very realistic appearance - are to be so seriously regarded when used for such improper purposes that heavy sentences ought to be imposed even in respect of them.

14. The sentence imposed in the present case for the robbery was on the light side.  Although no weapons were used, the circumstances could well have justified a term of four years' imprisonment.  Had the trial Judge, in choosing his totality, thought that that was the appropriate sentence, and had he also thought the five years for the possession of immitation weapon was proper, we would certainly not have interfered.

15. Although therefore he may not have made it as clear as he might have made it, we think that he was not in breach of principle in the sentences that he chose.  We cannot say that the overall totality in the circumstances was too high.  For these reasons therefore, the application will be refused.

Representation:

Mrs. V.A. Penlington(Director of Legal Aid) assigned for the Applicant.

G. Mawson for Respondent/Crown.