Chan Ling-kai and Another v. The Queen

CACC000728/1981

Headnote

16 years totality on P.G. for two armed robberies in which Applicant held and fired gun upheld.

BETWEEN

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

Date: 1 April 1982

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JUDGMENT

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Silke J.A. :

1. The Second Applicant was convicted on two charges of robbery to both of which he pleaded guilty.

2. The second robbery on the charge sheet related to the 4th October 1980 the robbery of a goldsmith shop the Chow Sang Sang. He had a gun with him and fired two shots. He was accompanied by one other person at the time. A substantial quantity of jewellery was stolen.

3. When he was arrested for that offence he made a cautioned statement admitting it and further admitting another robbery which took place on the 10th September 1980 at the Oliver Jewellery. He was then in the company of two other persons. Again he held the gun and he fired two shots.

4. In each of the cases the shots that were fired were fired into the ceiling and no actual injuries were caused to any person.

5. In the Chow Sang Sang robbery most of the items were recovered, but not in the Oliver Jewellery robbery.

6. As I have said he pleaded guilty at trial. He is aged 30. He has a common law wife and one child who was born in 1981. The trial Judge considered him to have been co-operative, presumably in so far as he admitted frankly the two robberies at the time of his arrest. There was identification evidence in relation to one of the robberies.

7. He had two previous convictions, one in 1975 and one in 1977. The 1975 conviction related to three offences of burglary and three offences of robbery.

8. He applied for leave to appeal against sentence and that application was refused by the single judge on the 12th November 1981 mainly on the basis that no grounds had been filed. He renewed his application on the 23rd November and by reason of that appears before us.

9. When the hearing of the application commenced on the 10th March there were still no grounds placed before us but we permitted the Applicant to address us generally on his reasons as to why he thought the sentences to be excessive. He had stated to us that he realised that he was wrong in that which he did. But he emphasized the fact that he admitted his guilt at a very earlier stage. He said that he had given a name of a fence to the police but this was a very vague name which did not exist in the apprehension of that person. He said that his accomplice, who was also charged with him in one of the robberies, got a sentence of nine years' imprisonment. He contrasts that with the totality of sixteen years which he himself received. He said he felt lie had been made the scapegoat. He also suggested that he had been forced by someone to commit the Chow Sang Sang robbery, having been told that if he did not do so he "should take care".

10. He then brought to our attention that he was suffering from tuberculosis and he said that he had an operation and that he should be hospitalised. For that reason we adjourned the application to obtain a medical report from the Prison Authorities. That medical report is now before us and it is correct that he is suffering from tuberculosis. The operation to which he refers appears to have been a biopsy. He is being treated and his general health is satisfactory.

11. On the point of discrepancy the Applicant is the person who had the gun and who fired the gun in the course of these two robberies. His accomplice did not and, further, he was charged with but one of the robberies not the two. We do not think that there to have been any real discrepancy as between the sentence of nine years imposed on the accomplice and the sixteen years total imposed upon the Applicant.

12. In passing sentence the Judge noted his plea of guilty but as has been said by this Court before in matters as serious as this when guns are used to the terror of the general population, pleas guilty attract little mitigation.

13. The medical report does not give us any doubt as to the proprietory of the sentence. He is in fact being treated and probably would be better for the treatment which he will receive in prison. We see nothing wrong with the totality of the sentence of sixteen years in this case - it was a very grave matter. If shots are fired to terrorize they may equally well kill or cause serious injury either to persons the immediate victims of the robbery or to innocent bystanders. While the trial Judge might have considered in making a distinction as between the first and the second as to the sentence imposed, in as far as he imposed sixteen years on each, the totality of the sentence of sixteen is in no way excessive. The application for leave to appeal will be refused.

14. In the light of the necessity for us to get a medical report there will be no loss of time.

Representation:

Applicant in person.

C. White Esq. for Crown/Respondent.