Lau Mun-sheung and Others v. The Queen
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CACC001285/1977
Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 15th May, 1978. ----------------- JUDGMENT ----------------- 1. The three appellants were charged with two others not before this Court, with the offence of attempted robbery contrary to section 10 of the Theft Ordinance. All three pleaded guilty to the alternative offence of common assault and were sentenced to twelve months' imprisonment each. In addition, the first and third appellants pleaded guilty to being in possession of offensive weapons in a public place contrary to section 33(1) of the Public Order Ordinance. For this, they were each sentenced to imprisonment for two and a half years concurrent with the sentence passed for common assault. Finally, the second appellant was charged with the offence of robbery contrary to section 10 of the Theft Ordinance. He was convicted of the alternative offence of handling stolen goods and sentenced to two and a half years' imprisonment consecutive to the sentence of common assault. 2. The first and third appellants appealed against these sentences. The second appellant appealed against his conviction for handling and against his sentence on the common assault charge. He did not. in his notice of application for leave to appeal against sentence mention the sentence of two and a half years for handling. We think that this was an oversight and treated his application as if he had applied to appeal against that sentence also. 3. These charges arise out of an incident which occurred at about 4 a.m. at the Kam Hoi Restaurant, Tung Choi Street on June 6th last year. As some customers were leaving the Restaurant a party of robbers armed with knives rushed in. The customers and some members of the staff were threatened and tied up and cash and certain articles of property were taken from the victims. We are only here concerned with the conviction of the second appellant for handling. 4. The second appellant gave evidence on his own behalf and set up an alibi. This evidence was not believed by the trial judge. The case against the second appellant depended upon the identification by the victims of the assault at the scene of the incident. This was positive and well within the guidelines set out in Turnbull's Case(1). In his judgment the trial judge specifically referred to that case and warned himself of the dangers of reliance upon evidence of identification only. 5. There was other evidence against the second appellant. At the time of his arrest, some two months after the incident, he was found in possession of a "Parker 75 ball point pen" which was identified as his by one of the victims of the robbery. He said it was taken from him forcibly during the incident in the Restaurant. We think that there was ample evidence on which to found the conviction of the second appellant and his appeal against conviction is dismissed. 6. This was a bad case of a concerted attack with weapons and though the sentences of twelve months' imprisonment for assault are maximum sentences we do not think that these sentences are excessive and the appeals against these sentences are dismissed. 7. As to the sentences of the first and third appellants on the charge of being in possession of offensive weapons, it is to be noted that these two appellants are 26 and 23 years only respectively and they both pleaded guilty. They each have a previous conviction of a minor offence. However, the weapons used were large knives often referred to in these courts as 'beef knives'. 8. We are of the opinion that the sentences of two and a half years' imprisonment are too heavy and we will allow the appeal against these sentences to the extent that the sentence will be reduced from two and a half years to eighteen months in each case. These sentences to be concurrent with the sentences for common assault. 9. We consider that the sentence of two and a half years passed on the second appellant for handling was, in the circumstances, manifestly excessive especially as it was ordered to be served consecutive to the sentence of twelve months' imprisonment passed on this appellant for common assault. It would appear that the trial judge was to some extent influenced by the circumstances of the robbery, an offence which was not proved as against this appellant. This would not be right. In our view, the offence as proved was relatively trivial. We therefore allow the appeal against that sentence and substitute a sentence of two months, which will be suspended for two years. The trial judge ordered the sentences to run from the date of the trial. No reason was given for this somewhat unusual course. And we order that the sentence shall run from August 22nd, 1977 which was the date on which this case was transferred to the District Court.
Representation: Sedgwick (Tsang & Chow) for all appellants Gall for the Crown/Respondent |