LO PING KWONG v. R.

IN THE COURT OF APPEAL

1992, No. 503
(Criminal)

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J U D G M E N T

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Litton, J.A., giving the judgment of the court:

1. This applicant, Lo Ping-kwong, was convicted in the High Court on 17 November 1992 on two counts of robbery at two karaoke lounges. The first occurred on 15 June 1991 at the Grammy Karaoke at Nullah Road, Kowloon where, together with one Lo Ping-kwong and others unknown, he robbed the occupants of the karaoke lounge of their personal beings and took $2,800 from the club.

2. The second occurred three days later on 18 June 1991 at the Yamamoto Karaoke lounge at Prince Edward Road, Kowloon where, together with persons unknown, he robbed the occupants of their valuables, cash, bank cards and withdrew $1,700 by the use of a card, and also took $7,000 from the karaoke club.

3. The two robberies followed a similar pattern. The robbers went to the club a few hours before its closing time, which in it each case was 5 a.m., took a room there and then, just before closing time, produced beef knives and carried out the robberies. The employees were threatened with violence. They were then tied up, gagged, required to lie on the floor and the telephone lines were cut. The employees were robbed of their valuables and cash was taken from each karaoke club.

4. In relation to count 2, the robbery at the Yamamoto Karaoke lounge, one of the victims was beaten up and later a sofa was put on top of him as he was lying on the floor.

5. It was not in dispute that the applicant went to the two clubs at the times alleged. His case at trial was that on each occasion he had left the Karaoke lounge before the robberies occurred. His defence was disbelieved by the jury and he was convicted after trial. Having been given leave to abandon his application in respect of conviction, he now applies for leave to appeal against the sentence of 12 years concurrent which the trial judge imposed in relation to the two crimes.

6. In imposing the concurrent sentences amounting to 12 years in total the judge said that the robberies were part of the same system; this justified the concurrent sentences.

7. The applicant now submits to us that his punishment is wrong having regard to sentences imposed for robberies of this kind where firearms have been used and that the 12 years sentence he received is similar to those cases where the defendants had been sentenced for robbery by the use of firearms.

8. The judge could well have approached the two offences consecutively since these crimes occurred on separate occasions. If he had imposed a sentence of six to seven years for each individual offence, the result would have been a total of 12 to 14 years. In our judgment having regard to the totality principle that would have been too high. The total result must be taken into account. In our judgment the proper sentence for these two crimes taken together should have been a total of 10 years and to that extent the learned trial judge had erred. We would therefore set aside the concurrent sentences of 12 years and impose concurrent sentences of 10 years instead. The application is allowed and the sentence is varied accordingly.