Yu Tong v. The Queen
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CACC000664/1969 APPELLATE JURISDICTION CRIMINAL APPEAL NO. 664 OF 1969
Coram: Rigby, S.P.J.,& Huggins, J. Date of Judgment: 13 October 1969 ----------------- JUDGMENT ----------------- 1. We delivered an oral judgment at the time this case came before us in Court but it was not recorded. The somewhat curious procedure that took place in the lower court, as it appears from the transcript of the shorthand note taken at the time, appears to us so eminently unsatisfactory that we think it desirable that we should express our observations in writing. 2. The appellant was charged with robbery with aggravation, the particulars of the charge being that he, whilst armed with an offensive weapon, namely a knife, robbed the complainant of a purse containing money and various other miscellaneous items. When the case came before the learned trial judge he referred Crown Counsel to a plea in answer to the charge, that had apparently been made by the appellant when he first came before another court, differently constituted, which plea was, in effect, that the appellant admitted the robbery but said he did not have a knife in his pocket. The appellant was then asked by the learned trial judge as to whether he still adhered to that plea and the appellant said, according to the record, "I admit taking a purse from that person". On the face of it that is not, of course, a plea of guilty of robbery, but a plea of guilty of the very much lesser offence of larceny from the person. The learned judge then said to Crown Counsel, according to the transcript of the evidence - "What is your view? This amounts to a plea of robbery but not robbery with aggravation." As we have pointed out the statement made by the appellant in court before the learned trial judge was not a plea of guilty of robbery but a plea of guilty of larceny from the person. However, the learned judge no doubt had in mind the plea earlier made by the appellant before a different court. We have now had the advantage of seeing the record in that earlier matter and it reads
The learned judge had quite clearly accepted that as a plea of not guilty and set the case down for trial upon that plea. However, in answer to the question put to him by the learned trial judge, Crown Counsel, no doubt perfectly properly, said that he could not let the case go as plain robbery. The record then states that the learned judge said "The end result would not be any different." What the learned judge meant by that statement we do not know; the plain inference would appear to be that the learned judge had already in mind what he considered would be an appropriate sentence and that it mattered not whether the appellant pleaded guilty to plain robbery or robbery with aggravation. However, it is apparent from the record that a discussion then took place between the learned judge and Crown Counsel and finally Crown Counsel agreed to accept a plea of robbery but without aggravation. Crown Counsel then proceeded to state the facts to the court, and in so doing expressly stated that the appellant produced a knife, the blade of which was extended, and stabbed the victim in the back of her head before forcibly taking the money from her. Having regard to the fact that there was a plea of guilty to robbery but not to robbery with aggravation, it seems to this court that it was plainly wrong for Crown Counsel to make any reference to the possession and use of a knife by the appellant in connection with the robbery. However, the learned judge then said to the appellant, through the interpreter "Apart from the question of the knife, does he admit the facts?" and the appellant answered in the affirmative. The admission, of course, of those facts - even excluding any reference to a knife - clearly amounted to a plea of guilty of robbery and, as such, we think that it cured any possible defect that might have appeared from the earlier part of the record where the appellant simply stated "I admit taking a purse from that person". The appellant asked for leave to appeal against the sentence of three years' imprisonment imposed upon him. It is to be said that he has a number of previous convictions, but, with the exception of one, in 1966, when he was sentenced to 9 months' imprisonment for larceny from the person, all those previous convictions are in respect of dangerous drug offences. 3. In the particular circumstances of this case, having regard to the statement by Crown Counsel and the reference by him to the use of a knife, and bearing in mind the charge to which the appellant had pleaded guilty, we are driven to the conclusion that the sentence of three years' imprisonment was excessive. We accordingly grant leave to appeal against sentence and allow the appeal to the extent that the sentence will be varied to one of two years' imprisonment; such sentence to commence as from the date of conviction. 4. We ought, perhaps, to add that the Crown Counsel, Mr. B.A. Sceats, who now appears before us, was not the Counsel who was concerned in the case in the lower court. Representation: Appellant in person Sceats, S.C.C. for Crown/Respondent. |