Chan Yee-lap v. R.

CACC000133/1992

1992, No.133
(Criminal)

IN THE COURT OF APPEAL

____________

____________

Coram: Hon Silke, V-P, Macdougall, J.A. and Jones J.

Date of hearing: 26 February 1993

Date of judgment: 26 February 1993

_______________

J U D G M E N T

_______________

Jones, J.

1. This is the judgment of the Court.

2. The applicant Chan Yee-lap pleaded guilty to one count of robbery before Gall J. on the 2nd March 1992. He seeks leave to appeal against his sentence of 5 years' imprisonment ordered to commence after the expiration of a term of 4 years and 9 months' imprisonment that he was then serving for two offences of possession of dangerous drugs for the purposes of unlawful trafficking.

3. Two co-defendants were also sentenced to 5 years imprisonment for the same offence. A plea of not guilty to a count of manslaughter against the applicant and the other two defendants was accepted by the Crown and remains on the court file.

4. The robbery took place at a flat in So Uk Estate on the 27th June 1990, just after 12 p.m. The property stolen consisted of some cash, a key ring and some foreign banknotes.

5. Prior to the robbery taking place, it appears that a man named Tsang, who is still wanted by the police, entered the flat where he assaulted and tied up an eighteen year old girl, Fok Mei-po, who later died from the injuries that she suffered. The death of the girl resulted in the manslaughter charge being brought to which we have referred.

6. The admitted facts reveal that the applicant and the other two defendants entered the premises after Tsang had assaulted and tied up the victim and it was only at that stage that they became aware of what had happened. The applicant's case was that he and the other two defendants had no knowledge that anyone was in the flat. However, despite what had occurred, they proceeded to steal the items to which we have referred. The premises were also ransacked. The applicant later became concerned that the girl was lying motionless and, after leaving the premises, he made an anonymous 999 call to the police stating that a robbery was taking place in the flat.

7. The judge accepted that the applicant's original intention was not to commit any acts of violence, but he did not accept, as submitted by counsel who appeared before him, that it could be treated as a burglary that went tragically wrong. He said it was a carefully planned robbery of domestic premises which were ransacked and items of property were stolen after the applicant and the other two defendants became aware of the presence of the victim.

8. In sentencing the applicant, the judge took into account his plea of guilty and an undertaking to give evidence against Tsang if he is prosecuted.

9. Mr Macrae on behalf of the applicant submitted that the judge failed to take into account the overall totality of the sentence of 9 3/4 years' imprisonment and gave no consideration to the applicant's telephone call to the police. Accordingly, he contended that the sentence was manifestly excessive and/or wrong in principle.

10. Mr Macrae referred to a passage in Principles of Sentencing by D.A. Thomas, 2nd Edition, at p.57 which reads

"the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive."

He also referred to R. v TONG Hoi-fung [1988] 1 HKLR 610 and R. v CHU Lin-sing Cr.App.No.509 of 1987 (unreported). Mr Macrae criticised the reasons given by Gall J. which appear at p.18 in the record when he said-

"The term of imprisonment imposed upon [the applicant] will be as I have said, after credit for time already spent in custody, to be served after the expiration of the term he is currently serving. The matter upon which he is serving sentence and this matter are totally unrelated, and it is not appropriate that I should make them in any way concurrent because to do so would be to reduce the penalty properly to be imposed on each of those counts."

11. Mr Wong, who appeared for the Crown, conceded that the totality of the sentence was too high and we agree. We are also of the opinion that insufficient consideration was given to the fact that the applicant made the telephone call to the police.

12. As a result there will be an order that the sentences ordered to be served consecutively be set aside and in substitution we make an order that 2 years and 9 months of the 5 year sentence be served concurrently with the sentence of 4 years and 9 months making a total sentence of 7 years' imprisonment. Accordingly, we allow the appeal to this extent.

Representation:

Mr Stephen Wong (Crown Prosecutor) for Respondent

Mr A. Macrae (D.L.A.) for Applicant