THE QUEEN v. KONG CHI KEUNG AND OTHERS

-----------------------

__________

JUDGMENT

__________

Mayo, J. delivered the Judgment of the Court

1. The 3rd Defendant was charged with Robbery. The offence was alleged to have taken place on the 14th February, 1985. The 1st Defendant and the 2nd Defendant were also separately charged with Murder and Robbery arising out of the same incident.

2. The 1st Defendant and the 2nd Defendant pleaded guilty to Manslaughter and Robbery. The 3rd Defendant maintained his plea and the trial proceeded on this basis.

3. At the commencement of the trial Crown Counsel opened the Crown case and made reference to the pleas of the 1st and 2nd Defendants. It is apparent from the record produced to us that Crown Counsel had had a discussion with Counsel representing the 3rd Defendant and that he had agreed to this course being adopted. This has been confirmed.

4. The first ground of appeal is based upon the difficulties which arose as a result of this. The 3rd Defendant complains that there was no sufficient evidence to justify his being charged with Robbery and that it was on account of his being thus charged that it became necessary for reference to be made to the other two defendants. Mr Loughran submitted that notwithstanding the directions from the trial judge that they should not draw adverse inferences from the involvement with the other defendants, it was inevitable that there would have been prejudice.

5. Be that as it may, the trial proceeded on the Robbery charge and the trial judge in his summing-up directed the jury that if they found the 3rd Defendant Not Guilty of Robbery, they should then go on to consider whether the charge of Handling Stolen Goods had been proved beyond a reasonable doubt.

6. From the material available to us, there does not appear to be much doubt that there was very little evidence to support the Robbery charge. However, we are satisfied that it was proper for the trial judge to leave the matter to the jury. It is no part of a judge's duties to usurp the functions of the jury.

7. The question which then has to be considered is whether the 3rd Defendant has suffered any prejudice by the failure of the trial judge to proceed as suggested by Mr. Loughran. Having regard to the clear directions given by the trial judge that they should not draw any adverse inferences from the involvement of the 1st and 2nd Defendants, we do not consider that any untoward consequences could have flowed from this even if Mr. Loughran's submission had found favour with us.

8. There was a further submission that on account of the Robbery charge being left to the jury they may have taken a "Soft option" in finding the 3rd Defendant guilty of Handling Stolen Goods. There is nothing to indicate that there is any substance to this suggestion and we find no merit whatever in this contention.

9. Mr Loughran also complained that the evidence contained in the various statements made by the 3rd Defendant was conflicting and raised no more than a suspicion of knowledge. In view of the passages appearing on pages 39 and 40 of our record, there was abundant evidence upon which a conviction could be founded.

10. This being the case, we are in no way satisfied that the conviction was unsafe or unsatisfactory. accordingly, the appeal against conviction is dismissed.

APPEALS AGAINST SENTENCE - D1 and D2

11. There would appear to be little justification for treating 1st and 2nd Defendants separately. We consider it to be appropriate that both men should receive similar sentences.           

12. The range of sentences for manslaughter is perhaps wider than for any other offence in the criminal calender.

13. It is evident from a perusal of the agreed facts that the present case is a bad one - indeed it may be the case that the defendants were extremely fortunate that the Crown agreed to accept the plea of manslaughter on the facts.

14. One of the men had a knife and the other knew that this was the case. It was by no means unpredicable that the victim would attempt to defend himself when approached by men who were intending to rob him.

15. The situation in respect of the Robbery charge is not altogether different. It is necessary to take cognizance of all circumstances surrounding the offence. It was a cowardly attack with a knife. There is not a great deal to be said about the individual circumstances of these men. Neither has a bad record but equally there is not a lot of which can be said to their credit. I do not think that a great deal of discount can be given for their pleas of guilty. We do, however, consider that some discount should have been given on both these sentences. The judge has given insufficient discount for the pleas of guilty. We order that the sentence of 12 years imprisonment be reduced to 10 years and the sentence of 10 years to 8 years. The total sentence is therefore now 10 years.

APPEAL AGAINST SENTENCE - D3

16. Clearly the trial judge approached the sentencing of the 3rd Defendant on a moderate to serious case of handling stolen property.

17. The value of the gold Rolex watch was never proved but it appears likely from the evidence that it was somewhere in the region of $20 000. There is no evidence that 3rd Defendant would gain any financial advantage from the transaction nor is there any evidence that he was a professional in this field.

18. Having regard to all these circumstances, it would appear that the sentence which was imposed was excessive. The sentence will be reduced to 18 months.