R. v. LAW CHEUK HUNG

IN THE COURT OF APPEAL

1997, No. 9
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced four charges - two of using a false instrument, one of possessing a false instrument and one of robbery. He pleaded guilty to the false instrument charges but not guilty to the robbery. He was found guilty after trial before Judge Britton in the District Court and sentenced to seven years' imprisonment on the robbery charge and to three months on each of the other charges with sentences were ordered to be concurrent. He now seeks leave to appeal against conviction and sentence on the robbery charge.

2. The only evidence for the prosecution came from the victim who was the manageress of a fashion business. She said that the applicant had assaulted her, threatened her with a paper cutter and demanded a loan of $20,000. She said that prior to so doing he had disconnected the telephone, and that when she tried to leave, he further assaulted her and smothered her with a cushion while continuing to press his demands.

3. Finally in considerable fear she gave him $500 which he took and then, after telling her not to report the matter to the police, left the premises. She said she immediately raised a hue and cry but the applicant managed to escape. While the threats and assaults were serious the victim was, in the outcome, left with only a slight injury to her neck.

4. The applicant gave evidence saying that he had asked for a loan and had inadvertently picked up a paper cutter and waved it at the victim. He said that he had sought to get her attention by putting his hand on her shoulder and by pulling her back towards him and that he, at one stage, used the cushion to cover her face because she was, without any real cause, shouting "robbery". He said with respect to the $500 that he had made no demand for money but that she had pressed that amount upon him.

5. The trial judge found the victim truthful, accurate and reliable. Her evidence was criticised because she had mentioned only in cross-examination that the applicant had taken her credit cards and asked for her PIN number. The trial judge accepted that she had, in fact, told the sergeant who was taking her statement about this but that he had said that as they were given back to her by the applicant the matter was irrelevant.

6. As to the evidence of the applicant, the trial judge said:

"It is a preposterous story, it is wholly unbelievable and I reject it completely. I am perfectly sure that PW1 (the victim) has told me the truth and I find the defendant guilty of this charge."

7. The applicant has put before us written grounds of appeal and has also addressed the court. He does not raise any properly arguable ground. In his written grounds he traverses the facts suggesting that the trial judge should have believed him. The facts, however, were for the trial judge. He was, not surprisingly in our view, satisfied that the evidence of the applicant was "a preposterous story" and should be rejected. The evidence of the applicant was on its face, as the judge said, wholly unbelievable. The application for leave to appeal against conviction is dismissed.

8. The applicant also appeals against sentence pointing that out he has a clear record, that he is the sole bread winner of his family, that he is remorseful and that he has apologised. He says that he acted impulsively and suggests that the sentence is longer than that imposed in similar cases. The trial judge when sentencing said:

"I intend to follow the guidelines laid down in the leading case of Mo Kwong-sang v. R. The appropriate sentence in an ordinary case of armed robbery where the accused carries a knife which is displayed to the victim is five year's imprisonment. This is not an ordinary case - there are aggravating factors. The case involves a robbery on private premises. You did not, of course, force your way into her office."

The judge then, addressing the applicant, said:

"You did not, of course, force your way into her office. You tricked your way in by producing forged references thereby inducing her to give you a job. This breach of trust and method of gaining entry to her premises is, in my view, fully equivalent to an invasion of those premises.

In addition, physical violence was used and it was used twice in frightening circumstances during the incident. In such circumstances seven year's imprisonment should be considered. I have considered such a sentence and I find it an appropriate starting point given the serious nature of what you did.

You are a man of previous good character. Of course, what you did was out of character as it would be for any man of previous good character who commits an armed robbery. In Mo Kwong-sang the Court of Appeal said that in imposing sentence little account should be given to the previously clear record of anyone who takes part in an armed robbery. I respectfully agree with and follow their Lordships and place little account on your previously clear record. I can give you no credit for remorse for you have shown none whatsoever."

He then sentenced the applicant to imprisonment for seven years.

9. This was on a person such as the applicant a crushing sentence. He has lived for 35 years as a law abiding citizen and was acting, it seems to us, completely out of character in committing this offence. The offence has some exceptional features. It was naive both in its formulation and in its execution. There was no way in which he could, if he had forced the loan out of the victim, escaped detection. Nonetheless he did, as the judge has indicated, use physical violence on the victim and threaten her with a paper cutter. We, nonetheless, think that the judge was wrong not to have given greater weight to the applicant's good record, his age and to the exceptional features of the offence. We are satisfied that the sentence was in all the circumstances manifestly excessive.

10. The application for leave to appeal against sentence succeeds and the sentence of seven years is varied to one of five years.