HKSAR v. Kuk Hon Chiu and Others
Read the full judgment text of CACC 18/1999 on BabelCite. This Court of Appeal judgment was delivered on 18 May 1999 before Mayo JA, Stuart-Moore JA.
Criminal law – robbery – handling stolen goods – immigration offence – sentencing – appeal – manifestly excessive sentence – consecutive sentences – discount for guilty plea. Three applicants (D2, D4 and D5) sought leave to appeal against sentence imposed in the District Court (DCCC 1193/1998) by H.H. Judge Wilson. D2 pleaded not guilty and was convicted after trial; D4 and D5 pleaded guilty. All three were convicted of robbery (charge 1) in which picnickers were set upon and beaten with poles and robbed of personal possessions and money; all three were also convicted of being in Hong Kong without the permission of the Director of Immigration. D5 additionally pleaded guilty to handling stolen goods (a pair of shoes) on charge 6. The Judge imposed 5 years' imprisonment on D2 for the robbery (no discount for not guilty plea) plus 15 months consecutive for the immigration offence, totalling 6 years 3 months. On D4, a starting point of 5 years was discounted by one-third for his guilty plea to 3 years 4 months, plus 15 months consecutive for the immigration offence, totalling 4 years 7 months. On D5, a starting point of 5 years was similarly discounted to 3 years 4 months, plus 2 years consecutive for the handling charge and 15 months consecutive for the immigration offence, totalling 6 years 7 months. The Court of Appeal held that no convincing reasons were advanced by D2 or D4, whose difficult personal circumstances could not weigh heavily against the gravity of the offences, and dismissed their applications. D4's application was out of time, the Court having decided to hear it de bene esse after he was advised by the Director of Legal Aid on 31 December 1998 (sentencing was on 16 December 1998) and he lodged on 21 January 1999. On D5's application, the Court accepted that the circumstances of the handling offence were much less serious than the robbery, and considered the 2-year consecutive term for handling stolen goods to be manifestly excessive. The Court allowed D5's application, treated it as the appeal, and reduced the sentence on charge 6 to 5 months' imprisonment consecutive to the other sentences, reducing D5's effective total sentence from 6 years 7 months to 5 years.
Legal issues: Whether D5's sentence for handling stolen goods was manifestly excessive
Outcome: Applications of D2 and D4 dismissed; D5's application allowed and treated as the appeal, with the sentence on charge 6 reduced from 2 years to 5 months' imprisonment consecutive, reducing the effective total from 6 years 7 months to 5 years.
|
CACC000018/1999 CACC 18/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 18 OF 1999 (ON APPEAL FROM DCCC 1193/1998)
---------------------- Coram: Hon. Mayo and Stuart-Moore, JJ.A. in Court Date of hearing: 18 May 1999 Date of delivery of judgment: 18 May 1999 ---------------------- J U D G M E N T ---------------------- Mayo J.A. (giving the judgment of the Court): 1. There are three Applicants seeking leave to appeal against the sentences imposed upon them. 2. Originally there were five defendants at the trial below in the District Court before H.H. Judge Wilson. It is convenient to refer to their designations as they were in the court below. The three defendants seeking leave were D2, D4 and D5. 3. It has to be added that D4 did not lodge his application within the prescribed time limit and accordingly has to obtain leave to proceed. The reason given for not proceeding timeously was that it was only later that he was advised by the Director of Legal Aid that he might have good grounds to appeal against the sentences which had been imposed. In this connection it would appear from the correspondence on file that D4 was advised by the Director of Legal Aid he might have good grounds on 31st December 1998. He was sentenced on 16th December 1998. His application was lodged on 21st January 1999 which was out of time. We propose hearing this application de bene esse. 4. The three defendants were all concerned with charge 1 which the Judge referred to as the first robbery. It was quite a bad robbery. Picnickers were set upon by these defendants and two other men who beat them with poles. They were then relieved of their personal possession and money. 5. D2 pleaded not guilty but was convicted after trial. D4 and D5 both pleaded guilty. 6. None of these defendants was involved in what was described as the second robbery. 7. D5 was also convicted on his own plea of charge 6 which related to handling stolen goods. The goods in question being a pair shoes stolen from someone. 8. All three defendants were also convicted of being in Hong Kong without the permission of the Director of Immigration. 9. The Judge sentenced the defendants in this way:
10. No convincing reasons were given by either D2 or D4 in their applications. Their difficult personal circumstances cannot weigh heavily in the balance where serious offences of this nature are involved. Their applications are both dismissed. 11. D5 has the benefit of having Mr. Ramanathan represent him. 12. The main complaint made by Mr. Ramanathan is that having regard to the sentences imposed on D5 in respect of the robbery and the immigration offence and the fact that he pleaded guilty to all the charges the total sentence imposed was excessive. 13. We can see some merit in the contentions advanced. The circumstances of the handling appear to be much less serious than the robbery. 14. We consider that the sentence which was imposed on the handling charge was manifestly excessive. 15. We allow D5's application and treating it as the appeal we reduce the sentence on the 6th count to 5 months imprisonment consecutive to the other two charges. This leads a total sentence of 5 years imprisonment. To this extent the appeal is successful.
Representation: Mr. A. A. Bruce, S.C., S.A.D.P.P. and Ms Winsome Chan, S.G.C. (D.P.P.) for Respondent Mr. Kumar Ramanathan, assigned by D.L.A. for 3rd Applicant (D5) Kuk Hon-chiu, 1st Applicant (D2) in person Li Yin-fung, 2nd Applicant (D4) in person |