R. v. Cheung Chi Fai

CACC000305/1996

IN THE COURT OF APPEAL

1996, No. 305
(Criminal)

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Coram: Hon Nazareth, V.-P., Mortimer and Mayo, JJ.A.

Date of Hearing: 3 December 1996

Date of Judgment: 3 December 1996

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant, Cheung Chi-fai, was convicted after pleading guilty by Woo J on 6th May 1996 of three offences: (1) rape, in respect of which he was sentenced to 7 years imprisonment; (2) indecent assault, in respect of that he was sentenced to 2 years, to run concurrently with the sentence of 7 years; and (3) escape from legal custody, in respect of which he was sentenced to 6 months, to run consecutive to the other sentences.

2. In the light of the narrow grounds upon which the application is made by Mr Shaun Kelly, on behalf of the applicant, who also appeared for him below, it is not necessary to go into the facts.

3. The judge in sentencing him took as the starting point for the offence of rape 8 years imprisonment. In view of the circumstances, no point is taken on that and it is to be regarded as an acceptable starting point.

4. The judge then dealt with that starting point on the following basis. This was what he said:

"You have pleaded guilty although you started with a not guilty plea. I don't give you much credit for the guilty plea for it was not made at the start of this trial or even earlier. But I must say that your guilty plea has saved the victims from their ordeal of reliving the horrendous experience that have been untouched for the continuation of their living now as adult women or wives or mothers."

5. For the applicant, Mr Kelly submits that the sentence of 7 years imprisonment was wrong in principle because it did not afford an adequate discount for the pleas of guilty and the victims being spared the ordeal of giving evidence. He refers to the recent judgment of another division of this Court, R. v. Pang Siu-hong, CriApp No 698 of 1995 (unreported). The Court in that case, which also involved charges of rape and indecent assault, said this:

"We can see the force of the argument that the discount for the guilty plea in respect of the attempted rape should have been more than the one-third allowed by the sentencing judge. That is because it is the sentencing policy of the courts to give particularly generous 'guilty plea' discount in such cases so as to encourage pleas which spare victims from having to relive their ordeal by recounting the same in the witness-box."

The judge here gave a discount of only one-eighth, whereas the usual discount is one-third. We think that it was wrong in principle. We think in all the circumstances, having regard to all the submissions made to us, that an appropriate discount would be an additional year so that the sentence of 8 years would be reduced to 6 years. The result is that the totality of 8½ years would be reduced to 6½ years.

6. Accordingly we grant leave to appeal against the sentence, treating the application as the hearing of the appeal, we allow it and set aside the sentence of 7 years and substitute a sentence of 6 years which will produce the result mentioned.

Representation:

Mr Shaun Kelly (DLA) for Applicant

Mr D.G. Saw (Crown Prosecutor) for Crown/Respondent