THE QUEEN v. HO KWOK CHU AND ANOTHER

IN THE COURT OF APPEAL

1986, No. 543
(Criminal)

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. The 1st Applicant was originally charged before His Honour Judge Cruden, sitting as a Deputy Judge of the High Court, and a jury on some 7 counts.

2. The 7th Count was one of robbery, to which the Applicant pleaded guilty. That is the only offence with which we are concerned. He wishes now to apply for leave to appeal against the sentence of 7 years imposed upon him. At the time he was the 1st Defendant and for convenience we shall refer to him as such.

3. The 2nd Applicant, who was then the 3rd Defendant, was charged with the same count of robbery. He too pleaded guilty, and he too wishes to appeal against a similar sentence.

4. The brief facts of the offence are that at 20 minutes to three one morning in May last year the two Defendants followed a lady as she alighted from a taxi and walked towards her own building. She was coming home from her work as a waitress. When she let herself in through the iron gate they pretended to be residents of the same building and followed her in. They sandwiched her between themselves and, taking one arm each propelled her to the corner of a lift landing, where they relieved her of money, a necklace and a diamond ring. At one stage, when she broke down into tears, the 1st Defendant produced a knife and threatened to stab her to death. Before leaving her they tied her up with metal wire, which the 3rd Defendant had been carrying, bundled her into the lift and pressed the button for one of the higher floors. She managed to free herself, get back to her own floor and make contact, with her husband.

5. The 1st and the 3rd Defendants were arrested soon afterwards that same morning in connection with a matter which has no concern with the present appeal. They were identified by the victim, who had come down then with her husband. A knife was found on the 1st Defendant and more metal wire on the 3rd Defendant. All of the victim's property was recovered.

6. Mitigation put forward at the trial was that they had both pleaded guilty, that both had in effect clear records, although the 1st Defendant had convictions involving violence when he was younger and the 3rd Defendant had convictions not connected with robbery, and that both needed the money they hoped to have gained from the robbery for the benefit of sick mothers.

7. The judge took into account when passing sentence, that all the victim's property had been recovered and that the Defendants had pleaded guilty. He observed that the normal sentence for an offence on the facts admitted would be in the region of ten to twelve years, but that he would make a substantial reduction in view of the pleas. With every respect to him he was putting the "normal sentence" too high.

8. Mr. Murray, for the 1st Defendant, suggests that the offence was somewhat akin to simple lift robbery, with some degree of violence involved. For that, another division of this Court has suggested that a convenient starting point should be, following a conviction after trial, imprisonment for 5 years: R. v. Wong Sai Cheong[1]. That suggestion was adopted in R. v. Wong Wai Por[2] and R. v. Kwok Chi Kwan[3]. However, in our view, the circumstances which we have outlined place the offence in a more serious category than normal lift robbery.

9. The judge declined to find any material distinction between the roles of each defendant in the offence itself. With that we agree. But a further factor has been put before us by Mr. Alderdice, for the 3rd Defendant, which was not available for mention to the judge, that is that the 3rd Defendant was subsequently of assistance to the police in providing information leading to the arrest and charging of a person with significant drug offences. Assistance to the police is well accepted as a mitigating factor, and warrants now, in our view, some distinction between the sentence passed on the 3rd Defendant and that passed on the first.

10. Bearing this in mind and starting generally from what we would conceive to be a more appropriate tariff figure, we think proper sentences would have been 5½ years and 5 years respectively.

11. We therefore grant the application for leave to appeal, treat the hearing as the appeal itself, allow the same and vary the sentences accordingly.