THE QUEEN v. LEE KWOK WAH

CACC000197/1986

IN THE COURT OF APPEAL

1986, No. 197 (Criminal)

BETWEEN

THE QUEEN   and   LEE KWOK WAH (D2)

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Coram: Li, V.-P., Yang, J.A. & Bewley, J.

Date of hearing: 10th October, 1986.

Date of delivery of judgment: 10th October, 1986.

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JUDGMENT

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Yang, J.A.:

1. D2 has abandoned his appeal against the sentences on Counts 1, 2 and 3. We are therefore concerned only with the sentence of 9 years on Count 4.

2. Having given the brief facts of the case at the last hearing, we do not propose to repeat them today. Suffice it to say that at about 10.15 p.m. on the 18th August 1985 near the subway leading from Fo Tan to Wo Che Estate, Shatin, D2, together with other persons unknown, robbed Mr. Choi Yan-chung of $620 (Count 3) and his girl friend' Miss Tang Pui-yu of a blue leather purse containing $160 and other items (Count 4). Knives were used to threaten the victims, and they were tied up, blindfolded and gagged.

3. The trial judge imposed a sentence of 8 years on Count 3.

4. In imposing a sentence of 9 years on Count 4, the trial judge said: "The woman victim was robbed in circumstances in which she was not only bound but indecently assaulted after her clothes were removed in part." It is true that in answer to a leading question by prosecuting ,' counsel Miss Tang Pui-yu agreed that she had been indecently assaulted, but there was no charge preferred against D2 for that offence. It was not known who committed the indecent assault or what role if any D2 played in the indecent assault. And the judge told the jury to put out of their minds the allegation of indecent assault, so that there could be no finding that it had been committed by D2.

5. Instead of imposing the same sentence for Counts 3 and 4, which arose out of the same incident, the judge gave a heavier sentence for the robbery committed against Miss Tang Pui-yu, presumably because of the alleged indecent assault upon her. Clearly the judge has misdirected himself, for it was not open to him to take the allegation of indecent assault into account in his assessment of sentence on Count 4. We would therefore reduce the sentence on Count 4 from 9 years to 8 years.

6. Having said this we must say that it is with reluctance that we reduce the sentence for the robbery was on any view a very serious one and offenders convicted of this type of robbery must expect a heavy sentence from the courts.

7. We accordingly allow the application, treat the application as the appeal proper and reduce the sentence in the manner indicated.

T.L. Yang Justice of Appeal

Representation:

G.J. Plowman (D.L.A.) for Applicant

Wilson for Crown/Respondent