AU WAI-CHI v. THE QUEEN

CACC001236/1977

 

IN THE COURT OF APPEAL	1977 No. 1236
on appeal from the High Court.	(Criminal)

 

BETWEEN:
	AU Wai-chi	Appellant
	and
	THE QUEEN	Respondent

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 14th April, 1978.

 

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JUDGMENT

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1. The appellant was found guilty of two charges of robbery and sentenced to five years' imprisonment for each offence, the sentences to be served concurrently. The appellant appealed against his conviction and sentence but virtually withdrew his appeal against conviction at the hearing of the appeal.

2. The two robberies were robberies of young women in the street. On each occasion the appellant used a penknife to threaten the victim. He succeeded in robbing his victims of about $120 in all.

3. Counsel for the appellant drew the court's attention to a passage in the record in which the trial judge very seriously criticized the way in which the appellant had defended himself and went so far as to say that the judge appeared to say that matters which he might have taken into consideration had the appellant pleaded guilty to the charges would be disregarded since no such plea had been made. With respect, we do not think that the passage objected to goes as far as that. It is true that certain matters had been referred to in mitigation immediately prior to the words which the trial judge used. The defence in part was a direct attack on the witnesses called for the prosecution and included an allegation that one witness, a police constable had attempted to kill the appellant in cold blood and that two other witnesses had perjured themselves. In our view, the words of the trial judge, read as a whole, indicate no more than that the appellant, by the conduct of his defence, including the fact that he had pleaded not guilty, had forfeited the sympathies of the court.

4. Be that as it may, we concluded that it was our duty to decide whether the sentence of five years' imprisonment for these two robberies was a proper sentence taking into consideration the whole case, including the matters urged in mitigation. There were circumstances of an aggravating nature in the second offence of robbery. And the appellant has a previous conviction for robbery.

5. The appellant has a history of illness, and his family or personal circumstances are far from happy. In the circumstances, we thought that the sentence of five years was excessive and that justice would best be done if that sentence was reduced to one of four years and we so ordered.

 

 

	(Geoffrey Briggs)
	President.

 

Representation:

Hoosen (D.L.A.) for appellant

Miss Harriss for crown