Wong Kin-hung v. The Queen
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CACC000781/1979
----------------- Coram: Huggins, J.A., Cons and Yang, JJ. Date of Judgment: 26 October 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. There are certain difficulties in this case. The Appellant was charged in two cases before the District Court. He wishes to appeal in both cases and quite properly those cases have been joined in one appeal, but they were separate cases in the District Court and, according to the notes which we have, they were in part tried together. That was an irregularity. There was a further difficulty, in that in the first of the two cases we find a note that a nolle prosequi was entered in respect of the three charges against this Appellant. If that nolle prosequi was valid then all the subsequent proceedings were invalid. However, there is a presumption of regularity, and we are informed that counsel who appeared on behalf of the Crown on that occasion was not authorised to enter a nolle prosequi. He himself indicated that a written document would be filed within three days. No such document was filed and we accept that it was required. We are told that there is a delegation by the Attorney General of his power to enter nolle prosequis to the Director of Public Prosecutions, but there appears to be no such delegation to other counsel for the Crown. Accordingly, we are satisfied that the proceedings which followed were regular to the extent that the proceedings had not been brought to a final conclusion. 2. This Appellant committed the three robberies charged in the first case when he was on probation. He was on probation for an offence of being a member of a triad society. No sentence was passed in respect of that offence: he absconded when he was on bail and during the period of his freedom he committed the robbery which was charged in the second case. The first three robberies were all robberies of taxi drivers. The robbery in the second case was a gang robbery on a domestic house. The learned judge said that weapons were used by the Appellant in every case. In fact in the third of the three robberies in the first case, no weapon was used, but the Appellant put his arm round the taxi driver's neck. That error is of no significance. Sentences of four years' imprisonment are commonly imposed for one offence of a robbery of a taxi driver. The other robbery is one for which this court has said it would not interfere with a sentence of six years' imprisonment. The only things to be said for the Appellant are that he pleaded guilty (although, as we have indicated, he did abscond in the first case) and that he was only about nineteen and a half years' old when he committed the first offences. 3. Bearing in mind these two mitigating factors we are driven to the view that these sentences are too light and we think that the total sentences should have been five years' imprisonment. Accordingly, we allow the appeal and substitute sentences of four years' imprisonment on the three charges in the first case and one of five years' imprisonment in the last case, all the sentences to be concurrent. 26th October 1979. |