HKSAR v. LEUNG CHIM FUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.562
(Criminal)

HEADNOTE

Criminal procedure - robbery committed with imitation firearm - severance of firearm offence - trial in Magistrates' Court - separate trial for robbery in High Court.

Severance - reasons why course adopted by prosecution inappropriate - offences inextricably linked - danger of inconsistent verdicts - unfairness to defendant and victim where two trials unnecessarily held - no justification for additional cost - undesirable for two sentencers to impose sentence for different offences arising from same facts.

Vigilance of magistrates needed to make enquiry into reasons for severance where charges appear closely linked.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.562
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 29th August 1997, this Applicant aged 23 (D1 in the trial) was sentenced in the High Court by Deputy Judge Muttrie to six years' imprisonment for robbery to run consecutively to a sentence of 27 months' imprisonment that he was already serving. The Applicant originally sought leave to appeal against his conviction but that application was dismissed upon abandonment on 8th December 1997. The application is now directed simply towards a reduction of sentence.

2. This was a robbery committed upon a lone, male cyclist as he made his way along a track in the New Territories at 9:25 p.m. on 10th November 1996. Three men, acting in concert, carried out the offence. D2, who pleaded guilty at the start of the trial, used what was later discovered to be an imitation firearm to hold up the cyclist. The victim was then relieved of his wallet and the contents thereof and also his bicycle, but he was permitted to keep his identity card when he asked for its return.

3. The prosecution made an extraordinary decision at the outset of proceedings. This was to transfer the robbery to the High Court for trial, but to deal with the imitation firearms offence in the Magistrates' Court at Fanling. Perhaps they did so because the Applicant had also to be tried for the offence of remaining in Hong Kong without authority.

4. Mr. Liu, for the Respondent, has been unable to put forward any explanation which would justify the course adopted by the prosecution. Whatever the reason, the robbery and the firearm offence were inextricably linked. They should not have been severed. The prosecution had two courses that they could have taken so far as those offences were concerned.

5. Firstly, they could have opted to proceed on indictment in the High Court on the robbery alone, by applying for severance at that stage and treating the firearm merely as evidence of the means by which the object of the robbery was achieved. This would have had the effect of overcoming added complications in the trial, which often arise where joint possession of a firearm is alleged. Sentence would have been left unaffected because the use of any firearm, real or imitation, in the course of a robbery is an aggravating factor. Following conviction, the firearm offence could then have been left on the file or, if an acquittal had resulted, no evidence would then be offered.

6. Alternatively, the firearms offence should have been tried with the robbery.

7. Under no circumstances should the firearm offence have been dealt with as a trial in the Magistrates' Court as happened here. The principal reason is the obvious danger of an inconsistent verdict arising where charges connected with the same events are tried on different occasions by different courts. Secondly, it was quite unfair of the prosecution to subject the Applicant to two trials on practically the same facts. Lesser considerations which are worthy of mention also are that the course the prosecution adopted potentially subjected the victim of this robbery to the anxiety of giving evidence twice. In this regard, and a further factor, is the additional cost involved where charges are unnecessarily tried. This cannot be justified on any basis whatsoever. Finally, it is extremely undesirable where more than one allegation arises out of the same facts that sentence should be imposed by more than one sentencer. It often leads to unnecessary complexity and may even lead to unfairness.

8. This court wishes to make it abundantly plain that this practice is not to be repeated.

9. Magistrates also should be vigilant to attempt to ensure that such occurrences are prevented by making inquiry into the reasons for severance if it appears that charges are closely linked. It would have been quite a different matter if the imitation firearm offence in the present example had no bearing whatever on the robbery charge being transferred to the High Court.

10. That being said, the Applicant now places his grounds of application on three principal bases. Firstly, he says that he had no physical contact with the weapon. Secondly, he thinks that his sentence is heavier than is usually imposed in similar cases to his own. Thirdly, he says that his family is in real difficulty.

11. It seems to us that the learned trial judge took all these matters and others into account. In particular the learned judge, when imposing sentence said, at p.34 of the appeal bundle:

"The prosecution caused the defendant to be tried separately from the trial of this offence before a magistrate on a charge under the Firearms Ordinance. The defendant was put to the inconvenience and stress of two trials when he should have had one.

It is argued that in this case I should regard the element of the firearm as having already been dealt with by the Magistrates' Court and sentence the defendant as if he had simply been charged before me with an ordinary kind of armed robbery using a knife or other weapon other than a firearm. I think that in the particular circumstances of this case, that argument is correct. Accordingly I will sentence this defendant as if for an armed robbery not involving a firearm or imitation firearm."

12. Pausing there, we think that the learned judge put the matter in a rather strange fashion but that his intention is clear, namely, to reduce the sentence to below the tariff where a robbery involves a firearm to take into account that the Applicant had already been sentenced for the firearm.

13. Returning to what the judge said in sentencing, he went on with these words:

"Following the case of Mo Kwong-sang and taking into account the fact that this was a three-handed robbery, a robbery carried out by three persons acting in concert, I will take a starting point of six years. The sentences that I impose will run consecutively to those imposed by the magistrate in the other trial.

In the case of the 1st defendant, taking a starting point of six years, there is no reason for allowing any leniency because he has been convicted after trial. Credit cannot be given for poverty or for family difficulties. These simply cannot be used as any kind of mitigation for coming into somebody else's territory and holding somebody up at gunpoint, even if the gun is an imitation one."

14. We think that the learned judge was right in what he said. He had taken into account the fact that the magistrate had imposed a 15 months' sentence for remaining in Hong Kong without authority and an 18-month sentence for the possession of the imitation firearm, 12 months of which was to be consecutive to the sentence of 15 months.

15. In the end, in our judgment, justice was done. The guidance offered by the case of Mo Kwong-sang v. R. [1981] HKLR 610 was followed.

16. Accordingly, we dismiss this application.