HO KIN AND ANOTHER v. THEY QUEEN

CACC000051/1976

IN THE COURT OF APPEAL
on appeal from the District Court
1976 No.51
(Criminal)

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BETWEEN
HO KIN Appellants
HA YAT FUNG
and
THE QUEEN Respondent

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Coram: Huggins & Pickering, JJ.A. & Li, J.

Date of Judgment:16th March 1976.

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JUDGMENT

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Huggins, J.A.:

1. We come now to the appeals against sentence, and these have caused us some considerable anxiety. Mr. Sharwood argues very stronglythat the offences of robbery and false imprisonment with which we are concerned are certainly no less serious than the ordinary “confrontationrobbery” with weapons, for which sentences of up to 3 ½ or 4 years are not uncommon at the present time. With that we must agree.The difficulty arises because these two men were not – and this seems to be accepted – the leading lights in this particular seriesof offences. The first Appellant was under the influence of the second Appellant and the second Appellant himself played a considerablebut nevertheless minor part. Both these Appellants were involved for only a short period of time, although during that period itmust have become obvious that the false imprisonment was going to be long and unpleasant for the victim.

2. We have approached this case by considering what sentence would have been appropriate on the organizer and the leading light in theseparticular offences and we think that probably a total of five years’ imprisonment would have been appropriate. That being so wedo not think that the sentence of 4 ½ years imposed on the second Appellant was in proportion. He had a number of previous convictions,only one of which was relevant – and only one of which was considered by the trial judge – and we think that a sentence for him of3 ½ years’ imprisonment would have been appropriate. Although that is a difference of no more than one year we think it is rightin the present case to reduce his sentence to one of 3 ½ years on each of these charges.

3. That places us in yet another difficulty in respect of the first Appellant. We agree with Mr. Sharwood that a sentence of three yearswas not manifestly excessive, although we think it was probably high: we think the proper sentence for this Appellant was one of2 ½ years’ imprisonment. Normally we would not interfere to reduce a sentence of three years by only six months but in the specialcircumstances of this case we think it would be wrong to leave the first Appellant with a sentence of three years and a differentialof only six months between him and the second Appellant. For that reason – and that reason alone – we will reduce his sentence toone of 2 ½ years’ imprisonment.

16th March 1976.

Representation: