R. v. Wong Kam-foon
Read the full judgment text of CACC 295/1991 on BabelCite. This Court of Appeal judgment was delivered on 12 March 1993 before Power, V.-P., Macdougall, J.A. & Mortimer, J..
Criminal law – robbery – sentencing – appeal – whether six years is appropriate starting point for robbery without weapon and with minimal force – discount for guilty plea. Criminal law – sentencing – robbery – no weapon – minimal force – appropriate starting point. Sentence review – Attorney General v. Shek Sui-tai [1989] 1 H.K.L.R. 178 applied – proper starting point for unarmed robbery with violence intrinsic to the offence held to be four years – six-year starting point reserved for robberies involving knives or dangerous weapons or invasion of private premises. Applicant pleaded guilty to robbery committed in a lift against a 46-year-old woman – punched victim's face and snatched her necklace – caught red-handed at sixth floor while continuing to threaten those apprehending him – trial judge in District Court imposed starting point of six years with limited credit for plea and sentenced to five years – applicant appealed out of time against sentence – Court of Appeal granted extension of time, treated application as the appeal, varied sentence to three years and six months. Sentencing math: starting point reduced from six years to four years per Shek Sui-tai; six-month discount for guilty plea; final sentence three years and six months.
Legal issues: Appropriate starting point for robbery without weapon and with minimal violence
Outcome: Application to appeal out of time allowed; sentence reduced from five years to three years and six months
Cited by 5 cases
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CACC000295/1991 IN THE COURT OF APPEAL 1991 No. 295 HEADNOTE Robbery - no weapon - minimal force - appropriate sentence. IN THE COURT OF APPEAL 1991 No. 295 ____________
____________ Coram: Hon. Power, V.-P., Macdougall, J.A. & Mortimer, J. Date of hearing: 12 March 1993 Date of judgment: 12 March 1993 ________________ J U D G M E N T ________________ Power, J.A.: 1. This is the judgment of the Court. 2. This applicant, having been given leave to withdraw his application for leave to appeal against conviction out of time, was represented today on his application to appeal against sentence out of time by Mr. Percy. He had been sentenced to five years by Judge Wesley Wong in the District Court on a charge of robbery having pleaded guilty thereto. We granted his application to appeal out of time. 3. The judge when sentencing recited the facts which were that on 30th September 1990 the applicant entered a lift together with an old lady and the victim, who was a female aged 46. While the lift was ascending, he declared robbery and tried to grab the victim's neck in order to snatch her necklace. She pushed off his hands and he then punched her face and got hold of the necklace. At the 6t floor when the lift stopped, the victim was able to cry out for help, two men came to her assistance and the applicant was apprehended. He continued, however, to display a degree of determined resistance as he told the persons apprehending him "when I come out, I must find all of you". The judge in his reason said:
Mr. Percy has argued only one ground and that is that six years was not the appropriate starting point for an offence of this kind. He submitted that six years would have been appropriate if the offence had been one of robbery involving knives or dangerous weapons and the invasion of private premises. He referred us to the case of The Attorney General v. Shek Sui-tai [1989] 1 H.K.L.R. 178 which was also a lift robbery in which the respondent followed a lady into a lift and as the lift went up, grabbed by her the neck with both hands and pushed her onto the floor. He tore her gold necklace and jade pendant from her neck but his attempt to remove her gold and jade finger ring was not successful. In imposing sentence, the trial judge in that case said he took into account the plea of guilty. His sentence was one of one year and the Attorney General applied to review that sentence. The Chief Justice, when dealing with it, said:
We are given considerable assistance by this authority. We are satisfied that, where there is no weapon and where minimal violence which is no more than part and parcel of the robbery itself is used, as was so, the case in Shek Sui-tai and in the present offence, the proper starting point is one of four years. In the present case, the applicant, having been caught red handed, was entitled to a minimum discount for his plea of guilty. We fix that discount at six months. We allow the application, treat the hearing of the application as the hearing of the appeal and order that the sentence of five years be varied to one of three years and six months.
Representation: Mr. D.G. Saw (Crown Prosecutor) for the Respondent. Mr. Duncan Percay (Messrs. K.C. Man & Co.) for the Applicants. |
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