THE QUEEN v. KU TIN LOK (D2)

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 517 of 1985

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BETWEEN

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JUDGMENT

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Power, J.

1. The applicant in this matter was found guilty after trial on the charge of attempted robbery and was sentenced to imprisonment of 10 years.  He now, having been given leave to appeal against such sentence out of time, urges this Court to impose upon him a lesser sentence upon the ground that he has personal circumstances which relate mainly to his elderly parents which would warrant some degree of leniency and on the ground that the other two persons, who were involved in the offence and dealt with by the Court, were sentenced to period of imprisonment of 5 years in the case of the 1st defendant and 7 years in the case of the 3rd defendant.  The applicant urges also that he has lost any chance of resuming a normal marriage life as his wife has now left him, and that he has also lost the chance which he formerly had of obtaining Portuguese citizenship.   He suggests that, in all of the circumstances, this Court should allow his appeal against the sentences imposed upon him. The trial judge was satisfied after hearing the evidence that the defendant had participated in a carefully planned and callously committed criminal offence.

2. A lady householder was induced to admit two persons, one of whom was dressed as a police officer, to her premises having been told that her child had been injured.  The 1st defendant at the trial and this applicant were those persons.  The 1st defendant was dressed as a police officer in a uniform which had been supplied to him by the applicant. The 1st defendant was armed with a weapon and after admission to the premises, when the lady victim grappled with him, he injured her by inflicting a wound with the knife on her neck.  The trial judge was satisfied that the applicant played "a leading role, if not the leading role" in the planning of the events and was, as I have already said, satisfied that he had accompanied the 1st defendant to the scene.  He also was satisfied that the applicant had arranged for telephone calls to be made which induced the victim to allow them to enter the premises. The trial judge pointed out that not only was this a callous crime but that it was committed when the applicant and the 3rd defendant were serving police officers were under a duty to protect the public and to uphold of the law.  Having taken all of these matters into account, he was satisfied that a proper sentence was a imprisonment of 10 years. The applicant complained that the 3rd accused, also a serving police officer. was sentenced to imprisonment for 7 years and suggested that, given that the two defendants were convicted of the same offence and dealt with by the same judge, this disparity was one that required action by this Court.  The trial judge when he sentenced the 3rd accused, pointed out that, while he played an important role, he was not personally present at the offence and that he had played a lesser role than the 1st and 2nd accused.  He accepted that the 3rd accused did not know, when he participated at a planning meeting on the 10th May, that a weapon would be used in the offence and took that into account when arriving at the sentence to be imposed.

3. The 1st accused was sentenced to imprisonment for 5 years.  This sentence was imposed upon a person who was not a serving police officer at the time of the offence who had pleaded guilty. When viewed in the light of these facts we do not find it a matter of any concern that his sentence was substantially less than that imposed on the applicant.

4. We are satisfied as regards this applicant and the 3rd accused, that there were differences in the facts that applied to each accused that the trial judge properly took those differences into account.

5. We are satisfied that the applicant was involved in a serious and callous offence and that the sentence of 10 years imposed upon him was a proper one.  We are satisfied, for all the above reasons, that there is nothing which calls for interference by this Court with that sentence. The application is dismissed.