R. v. KO LAI MAN AND OTHERS

HEADNOTE

The guidelines in MO Kwong-sang were rightly applied to an aggravated burglary charge in company with which violence was used.

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J U D G E M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicants faced four counts. They were aggravated burglary, wounding with intent, and two counts of false imprisonment. They were convicted after trial before Deputy Judge Leong and a jury and were sentenced to eight years on the aggravated burglary, four years on the wounding, and four years on each of the false imprisonment. All of the sentences were ordered to be concurrent. Their application for leave to appeal against conviction was heard by this court and dismissed. They now seek leave to appeal against their sentences.

3. The facts which I have taken from the judgment of this court dismissing their application for leave to appeal against conviction are as follows: The applicants went to the premises where the offences occurred at about 12.15 p.m. They forced their way in, pushing past the Filipino maid. The 3rd applicant held the maid's neck, pointing a bread knife at her and telling her not to scream. There were three other persons in the premises - Mr. Tsong the householder, his friend Miss Fei and his elderly grandmother. It was the evidence of the maid that the 1st and 2nd applicants kicked open the door of the room in which Mr. Tsong and Miss Fei were and that the 2nd applicant then tied up her and Mr. Tsong. The maid said that the knife which the 3rd accused held was not one which she had previously seen in the house.

4. Miss Fei, Mr. Tsong's friend, gave evidence saying that she heard noise, realized that something was amiss, and tried unsuccessfully to stop the door from being kicked in. She said she was menaced by the 1st applicant who was holding a chopper and that she recognized this as having been taken from the flat's kitchen. She said she was also menaced by the 3rd applicant who was holding a bread knife which she said was not one of the household knives. She said that the 3rd applicant became angry when she tried to intervene to protect the grandmother and thrust the knife towards her and that her hand was then cut as she tried to ward it off.

5. Mr. Tsong in his evidence said that the 3rd applicant had a knife and that the 1st applicant had a chopper and that at some time after their entry, it seems that this was after they had become aware that the police were on the scene, they told him that they had come to collect a debt and were looking for Ah Tak.

6. It was the defence case, which the jury clearly rejected, that the three were attempting to collect a debt and that they had gone to the wrong flat and that the bread knife had come from the kitchen.

7. The accused were aged 21, 20 and 22. The application for leave to appeal which has been argued today by Mr. Kan placed reliance upon the fact that they are all relatively young, that none have been in prison before and that they did not, in fact, steal anything from the premises. The latter is true, but may well be explained by the fact that they became aware that the police were on the scene and that they were likely to be apprehended.

8. We are satisfied that the trial judge rightly had in mind the guidelines in MO Kwong-sang when sentencing these applications. It is true, as Mr. Kan points out, that they were charged with aggravated burglary and not robbery but the facts were very akin to those of a robbery.

9. Bearing those guidelines in mind it seems to us that nothing can be suggested which would indicate the judge made a wrong assessment when he sentenced each on the burglary charge to eight years.

10. The application must fail and is therefore dismissed.