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CACC522/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 522 OF 2005
(ON APPEAL FROM DCCC 674 OF 2005)
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BETWEEN
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HKSAR |
Respondent |
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and |
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WONG KAM TONG (黃錦棠) |
Appellant |
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Before : Hon Cheung and Yuen JJA and McMahon J in Court
Date of Hearing : 23 May 2007
Date of Ruling : 23 May 2007
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R U L I N G
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McMahon J (giving the ruling of the Court) :
1. We delivered judgment in this matter on 22 May 2007. As a result of that judgment two of the appellant’s three convictions were quashed and the sentences set aside. That resulted, as we noted in the judgment, in the sentence for the surviving conviction for attempted theft (i.e. the sentence in respect of the 2nd charged offence) of three years and three months’ imprisonment remaining in place.
2. Mr McGowan for the appellant not being present at the delivery of the judgment, we have today given him the opportunity to address us on the remaining sentence, pursuant to the provisions of section 83B of the Criminal Procedure Ordinance.
3. In our judgment, the sentence on the remaining conviction for the 2nd charged offence now falls to be considered in the light of the orders we have made in our judgment of 22 May 2007.
4. The facts of the offence have been sufficiently set out in that judgment. The offence was obviously well-planned and professionally carried out and a gang was involved. That gang we are satisfied, if not acting together with the driver of the taxi involved, were taking advantage of his driving which distracted the intended victim of the 2nd charged offence so the attempt could be made.
5. There is one aggravating factor we think pertinent to sentence. The appellant had committed this offence whilst he was on bail, that matter was taken into account also by the sentencing judge. In our view, taking all these matters together, the nature of the offence, the sophistication of the offence, the involvement of a gang and the commission of this offence whilst on bail, the appropriate sentence should have been two years’ imprisonment for the 2nd charged offence, if it had been taken in isolation.
6. Accordingly, we set aside the sentence of three years and three months’ imprisonment and substitute for it a sentence of two years’imprisonment, there being no mitigation. That will result, to our understanding, in the immediate release of the appellant.
(Peter Cheung)
Justice of Appeal |
(Maria Yuen)
Justice of Appeal |
(M.A. McMahon)
Judge of the Court of First Instance |
Mr Paul Ho, SGC of Department of Justice, for the Respondent
Mr James H.M. McGowan, instructed by Messrs Kevin Ng & Co., as assigned by Director of Legal Aid, for the Appellant
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