R. v. LAU KONG TUNG and Another

IN THE COURT OF APPEAL

1994, No. 557
(Criminal)

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J U D G M E N T

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Litton, V.-P.:

1. There are two applicants for leave to appeal against sentence. Lau Kong-tung (D1) and Kou Yuk-tat (D2). They were jointly charged with committing one robbery on 28 February 1994 in the course of which an imitation pistol was used. That constituted charges 1 and 2 on the charge sheet. D1 was separately charged with another robbery which occurred on 20 February 1994 in the course of which an imitation pistol was also used. That constituted charges 3 and 4 on the charge sheet. They had both entered Hong Kong illegally from China in February 1994 and were accordingly charged with remaining in Hong Kong without the authority of the Director of Immigration contrary to section 38(1)(b) of the Immigration Ordinance.

2. We deal first of all with D1's application. He was 23 years old at the time of the offences. The sentencing judge, Deputy Judge Christie in the District Court, took as his starting point four years' imprisonment for the robbery offences and considered that sentences of imprisonment on the firearm offences and the s38(1)(b) Immigration Ordinance offence should be served consecutively. He gave D1 a 25% discount for his guilty plea on one of the robbery charges and imposed a sentence of one year's imprisonment on each of the two firearm offences, and one year three months on the Immigration Ordinance offence. These consecutive sentences would however have overtopped the limit on jurisdiction of the district court and would also have been excessive having regard to the totality principle. Accordingly the judge made the sentences partly concurrent, with the result that D1 was sentenced to a total of six years and three months' imprisonment.

3. The first question we address is one of principle. Has the judge approached his task correctly in considering consecutive sentences? The answer must be yes. These were distinct offences and could be dealt with distinctively.

4. The "firearm" feature of the robbery called for additional punishment. A firearm charge having been brought, such additional punishment was imposed by way of a robbery sentence (which did not take into account the firearm feature) plus a consecutive sentence on the firearm charge. If no firearm charge had been brought, then the robbery sentence itself would have been longer in order to reflect the firearm feature of the robbery.

5. Accordingly, we are not in any way departing from statements made by this Court in recent cases in which the circumstances were such that the addition of a firearm count overloaded the indictment. In those cases, we pointed out that such addition was unnecessary (since the robbery sentence would reflect the firearm feature) and therefore merely overloaded the indictment.

6. The judge was also right to have regard to the totality principle and with that in mind to make the sentences partly concurrent. His approach therefore cannot be faulted.

7. As regards the total for these five offences of six years and three months, the court must have in mind the protection of the public from crimes of this kind. Robbery committed with the use of imitation firearms has always been regarded as serious by the courts; albeit the imitation gun used in this case was in effect a plastic toy: but used at night it must have had a most frightening effect on the victims. The only mitigation put forward by D1 is that the circumstances of the robberies were attended, not with violence as such, but threats of violence and harm. In relation to the second robbery in which D2 took part the victims asked the robbers to return some of the cash so that they could have transportation home and they were given back a few tens of dollars for that purpose. This was faint mitigation. There is no suggestion that the judge did not take into account all the circumstances of the case. In our judgment the sentence of six years and three months' imprisonment imposed on D1 is correct in principle; it is not manifestly excessive; his application must therefore be dismissed.

8. We turn now to the case of D2. This has troubled us greatly. He was 17 years of age at the time of the offence, having illegally entered Hong Kong about a week before. Of the two robbers, he was unquestionably the younger and might have been to some extent under the influence of the older man D1. It was D1 who held the imitation gun to frighten the victims. D2 had in his hand a length of beaten aluminium shaped in the form of dagger. That in fact could have caused little harm because the metal was soft and, as we have said, although money was stolen by the threat of violence, a few tens of dollars were returned to the victims before the robbers fled.

9. In sentencing D2 the judge said this:

"You are younger and I accept that your role in the one robbery, in which you are implicated, was less than the other defendant's."

10. The judge rightly took into the account the fact that initially D2 had pleaded not guilty to the robbery and possession of imitation firearm offences. It was only after his cautioned statement had been admitted in evidence that he changed his plea. For the robbery offence the judge imposed a sentence of three years' imprisonment.

11. In relation to the possession of imitation firearm offence the judge had clearly taken into account the fact that the gun was not held by D2 at the time of the robbery: although plainly he was in possession of the gun with D1 because it was a joint enterprise. Perhaps reflecting his lesser culpability the judge imposed a sentence of nine months' imprisonment on D2 in relation to the firearm charge.

12. In relation to the Immigration Ordinance charge the judge imposed a sentence of nine months' imprisonment consecutive to the other two, making a total of four-and-a-half years' imprisonment.

13. We have entertained the submissions of Miss Corinne Remedios on behalf of D2 with great anxiety. We are troubled that a young man aged 17 years should be sent to prison for such a length of time and have anxiously considered whether in regard to the total sentence of four-and-a-half years' imprisonment it might not be said to be excessive. We have however to bear in mind the protection of the public. Since the approach of the sentencing judge in imposing consecutive sentences cannot be faulted in any way, the only question is whether the three years' imprisonment for the robbery offence might be said to be too long. We have come to the view with some reluctance that we cannot interfere. The judge in sentencing D2 cannot be faulted in any way. He neither erred in principle nor is the total of four-and-a-half years manifestly excessive. This application for leave to appeal against sentence must therefore be dismissed.