THE QUEEN v. LEE CHEUK HO

IN THE COURT OF APPEAL

1994, No. 658
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal out of time against the total sentence of 10 years' imprisonment passed on him in respect of one count of robbery and one count of possession of an imitation firearm.

2. He made a similar application a year ago and this was refused. According to the reasons now given by the applicant in support of the present application he did not on the previous occasion he appeared before the court realise that he had to give reasons for not having made his application within the prescribed period. It was, for that reason, dismissed.

3. He says that when he made his application to appeal against his convictions on these charges he had discussions with his fellow inmates and they had advised him that his prospects of success on his application for leave to appeal against conviction were more favourable than those of his application to appeal against the sentence imposed upon him.

4. Be that as it may it is all rather unconvincing. The form which he signed when he applied for leave to appeal against his conviction very specifically states that an appeal against sentence can and should be prosecuted together with an application for leave to appeal against conviction.

5. However be that as it may we do consider that we should allow this application to proceed.

6. It was a serious case. Three men entered factory premises after hours. One of the men, the applicant, had a knife and another man wielded an imitation pistol. The victims were tied up.

7. Deputy Judge Wong the trial judge imposed the sentences after trial on the basis of 8 years being passed for the robbery offence and 10 years for the possession of the imitation firearm which he ordered to be served concurrently.

8. This was not an approach which we would commend. It would have been preferable for him to have assessed the sentence proper to be imposed on the robbery offence, taking into account the overall criminality of that offence in which an imitation firearm was used, and to have then imposed a concurrent lesser sentence in relation to the firearm offence.

9. Before us the applicant complained about the apparent disparity in sentences imposed upon the three men concerned. He claimed that he was not the mastermind of the crime. He also referred to the fact that one of the other men who pleaded guilty only received 6 years' imprisonment and the remaining defendant was sentenced to 9 years' imprisonment although his role was a larger one than the applicant.

10. It is perhaps significant to add that one of the other men had been an employee of the factory concerned.

11. The applicant also emphasized that the firearm in question was only a toy gun. We can see some justification for the sense of grievance apparently felt by the applicant. We do not see sufficient justification for passing a heavier sentence upon him than the other defendant.

12. Also while fully accepting that this was a very serious offence, we do consider that the use of a toy gun was potentially less serious than if a real firearm had been used.

13. Taking all of these factors into account we have concluded that the application should be allowed and treating it as the appeal order that the sentence of 9 years' imprisonment be imposed on the robbery count and a similar sentence be imposed on the imitation firearm account and that this sentence should run concurrent to the robbery count. The appeal is allowed to this extent.