Chan Kim-man and Another v. The Queen
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CACC000991/1979
----------------- Coram: Huggins, J.A., Cons and Yang, JJ. Date of Judgment: 3 January 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. These two Appellants were convicted of robbery. The 1st Appellant was convicted on two charges in respect of which he was sentenced to two and a half years' imprisonment consecutive on each charge and the 2nd Appellant was convicted on one charge, the second of the two for which the 1st Appellant was convicted, and was sentenced to two years and three months' imprisonment. Both Appellants had previously been convicted of other offences which had in fact been committed the day before the last of the robberies in the present case. For those offences, which included false imprisonment and robbery, they had each been sentenced to three and a half years' imprisonment. The learned judge came to the conclusion that they ought to serve a total of seven or nine years for all the offences which they had committed during the relevant period and, taking that view, he deducted the three and a half years already imposed, and, as regards the 1st Appellant, divided by two the resulting five years so as to make two and a half years' imprisonment on each charge. He allowed a little less than that in respect of the 2nd Appellant, who had only the one conviction in this case and who pleaded guilty. The 1st Appellant had pleaded guilty in respect of the first robbery but not the second. 2. Miss Leung submits that it was wrong for the learned judge to consider what he thought was the appropriate total. In our view that was not an improper course to take, because it was obviously material at some point for him to consider whether the totality of the sentences which he thought should be imposed for the particular offences added up to more than ought to be served. However, where we are inclined to agree with Miss Leung is that, in any event, the total at which the learned judge arrived was excessive. The 1st Appellant was nineteen years of age. The 2nd Appellant was only seventeen and the 2nd had a clear record apart from the offence for which he got the three and a half years. 3. The second objection which is taken is that there was no distinction made by the learned judge in respect of the two robberies for which he now stands convicted, although he pleaded guilty in respect of one of them. We do not think there is any great substance in this point, because the learned judge gave a reason why he was not making a distinction and thought that it was rather artificial to do so. In the event, we are going to make a distinction but we do not think that the judge was necessarily wrong in the course that he took. 4. The third complaint was that the learned judge rejected the suggestion that the robbery had been committed in order to pay compensation for a car which had been damaged by the 1st Appellant. As, Cons, J. pointed out in the course of the argument, there did seem to be good ground for rejecting that suggestion in that there was evidence before the judge that in fact the money that had been stolen had not been used to pay compensation for the damage but had been spent on "food and enjoyment". 5. We think that having regard to the ages of these men the sentences were, in the event, higher than was desirable. We cannot of course interfere with the three and a half years' imprisonment in the other case. What we propose to do, therefore, is to allow the appeals and to substitute in the case of the 1st Appellant a sentence of one year's imprisonment on the first charge and one and a half years' imprisonment on the third charge, those sentences to run consecutively and consecutive to the three and a half years, making a total of six years. In the case of the 2nd Appellant we substitute for the two years and three months a sentence of one year's imprisonment, which again will be consecutive, making a total of four and a half years' imprisonment. 3rd January 1980. |