R. v. NG CHI YIN

IN THE COURT OF APPEAL

1995, No. 413
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant was convicted by Her Honour Judge Chua on 23rd May of 4 offences of robbery contrary to ss.10(1) and (2) of the Theft Ordinance, Cap.210, one offence of assault occasioning actual bodily harm contrary to s.39 of the Offences against the Person Ordinance, Cap.212 and one offence of wounding contrary to s.19 of Cap.212. He was sentenced to 6 years imprisonment on each of the robbery charges which were to run concurrently, and two sentences of imprisonment for one month in respect of the assault and the wounding charges, which were ordered to be consecutive.

2. The offences all took place in Kwun Tong between October and December 1994. All the victims were females.

3. The victim of the first and second charges, these being respectively robbery and assault, was a Miss Yuen Yun-lin. She was walking along How Ming Street about 7.30 pm on 30th December 1994 when the applicant grabbed hold of her neck and attempted to take her handbag. She resisted and continued to scream although the applicant beat her over the head with a wooden block several times, injuring her. It was in respect of the latter action that the 2nd charge was laid. Fortunately, help arrived and the applicant was arrested. That led in time to the applicant being charged with the other offences, i.e. counts 3 to 6 inclusive, in respect of which he made a cautioned statement to the police admitting the offences.

4. In the four robberies, items like silver and gold necklaces and pendants were taken.

5. The victim in the 5th and 6th charges, Ip Wing-shan, was walking with a friend and was hit by the applicant with a piece of water piping when she went to her friend's assistance. The blow caused a vertical 1 inch wound on her forehead which required stitches and had left a scar. This was the subject of the 6th charge.

6. In his notice of appeal for leave to appeal against conviction and sentence the applicant gives these as his grounds:

"I think the judge convicted me, the accused, of the second, third, fourth, fifth and sixth counts of offences because of the witnesses' accusation. However, I, the accused could not be identified. The judge totally believed the testimony of the police and found me guilty. It was inappropriate that no factual foundation such as witnesses and real evidence existed except the police's words. Under these circumstances, assumed there was a different witness in this case who could identify me robbing her but the police testimony believed I was innocent. How would the judge adjudicate? Therefore, I appeal against conviction and sentence."

Before us today, he has nothing to add.

7. It has to be said that on the 1st and 2nd counts, there was actual evidence. Indeed, the applicant was arrested on the spot. There can be no question that he was guilty of those two offences. As to the others, it is true that he was not identified - the identification parade having had to be abandoned because he did not turn up. We should explain in that regard that the applicant is said to be a street-sleeper. However, he did admit those other offences in his cautioned statement. Although the statement was challenged by his counsel, he being represented at his trial, the judge found it was voluntary and accepted it as, indeed, she was entitled to do.

8. In all the circumstances we find nothing in his grounds given in his notice of appeal or indeed in the papers before us to warrant interference with her conclusion that he was guilty on all six charges. His application for leave to appeal against conviction must be refused.

9. Turning then to his application for leave to appeal against sentence, as indicated, the sentences of one months imprisonment on each of counts 2, i.e. the count charging assault occasioning bodily harm and count 6 which charged wounding, were ordered to be made consecutive. However, from even the short explanation of the facts that we have given, it can be seen that the actions, comprising the assault and the wounding, were part of the actions that founded the related charges of robbery. The sentences, therefore, upon the two counts should, at the very least, not have been consecutive to the sentences on the related robbery.

10. We accordingly think that that situation should be rectified and grant the application for leave to appeal against sentence. We treat this hearing as the hearing of the appeal, allow the appeal in respect only of the order that the two sentences should be consecutive, set aside the order and instead substitute an order that they run concurrently. The effect of that will be that the total period of imprisonment to which the applicant remains subject will be 6 years instead of 6 years and 2 months. That is still a very substantial period but it is fully deserved for the serious and repeated offences in question, and neither wrong in principle nor manifestly excessive.

11. We feel bound to add that if we had not had to allow the appeal in respect of the consecutive sentences, given the general lack of merit in his grounds of appeal, we would have seriously considered disallowing the whole or part of the applicant's pre-trial detention from counting towards his imprisonment so that he would have had to serve a somewhat longer period.