R. v. WONG TIN HING and Others

IN THE COURT OF APPEAL

1996, No. 128
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. These three men, the first two in their 30s and the last in his 40s, were jointly charged with robbing a man named Cheung and wounding him with intent to cause him grievous bodily harm.

2. They were tried before Deputy Judge Andrée Wiltens in the District Court early this year.

3. On January 11, they were each convicted as charged. And on February 1, they were each sentenced to five years' imprisonment by way of concurrent terms of five years for the robbery and one year for the wounding with intent.

4. They now seek leave to appeal against conviction and sentence.

5. None of them had disputed his presence at the scene. Before us, each of them has asserted his innocence to any charge of robbery and each of them has accepted that he was involved in wounding, although not wounding with intent. One of them actually seems to accept that he had committed wounding with intent. But we think it is safer to treat him, too, as denying intent, and considering what the prosecution's case established.

6. Now, the first question is : was the victim robbed and really seriously wounded with at least one weapon by persons whose intent must have been to cause him really serious injury?

7. There was evidence on which to find that proved beyond reasonable doubt if the judge was sure as to the accuracy of that evidence.

8. As for the defence at trial, the 1st and 2nd applicants did not give evidence while the 3rd applicant gave evidence denying that he had done any more than slap the victim once when seeking compensation which he said was due to him from the victim who had beaten him up sometime before.

9. It was the judge's assessment of the victim's evidence that it was honest but not very clear so that some corroboration or supporting evidence was required. There was such evidence from an independent eye-witness who saw the end of the incident. What she said that she saw included the 3rd applicant snatching the victim's wallet, taking several hundred dollars from it and then going off with a man who was armed with a bicycle chain. The judge considered the independent eye-witness to be impressive and reliable. As for the 3rd applicant's evidence, the judge was wholly unimpressed by the same and rejected it.

10. So the judge was entitled to conclude, on the evidence which he accepted, that the victim had indeed been robbed and really seriously wounded by persons whose intent must have been to cause him really serious injury.

11. That still leaves the question in regard to each applicant whether he was one of the perpetrators.

12. Here the judge had signed admissions by each applicant in the form of a record of interview.

13. The admissibility of those records was challenged. None of the applicants gave evidence on that issue. The judge was impressed by the evidence of the police officers concerned and wholly unimpressed with the one defence witness called on that issue. So the judge admitted the records and acted upon them.

14. Taking each applicant's admissions in context, each applicant's admissions is ample evidence that he was one of the perpetrators. So there is nothing unsafe or unsatisfactory about any of the convictions.

15. Leave to appeal against conviction is refused in regard to each applicant.

16. What remains is the question of sentence. It seems to us that in all the circumstances, as it is safe to view those circumstances, the proper punishment for each of these men is four years' imprisonment. There is some indication why the judge went higher, because his Reasons for Sentence includes this observation by him :

" The accused showed no remorse whatever, and compelled the victim to have to relive the agony of the moment in the witness box. They further cast aspersions against the investigating police officers which I found to be groundless and untrue."

The absence of remorse is a negative element. But the judge went further to deal with the positive elements of compelling the victim to go into the witness-box and of casting false aspersions on the police.

17. It is difficult to see what the judge could have thought of those matters which made them worth mentioning except that they were, in his view, elements of aggravation. But it is no part of the sentencing process to regard things of that kind as aggravation for the purpose of assessing penalty. At the end of the day, it comes down to this : for whatever reason, the judge went higher than we think was justified.

18. The sentences for the wounding with intent, which were concurrent anyway, will be left undisturbed. But the concurrent terms of five years' imprisonment passed on each of these applicants for robbery will be reduced to four years' imprisonment. Each application for leave to appeal against sentence is treated as the appeal itself and allowed to the extent indicated, leaving each man with a total of four years' imprisonment.