R. v. Chan Ting Yu

HCMA000597/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.597 OF 1996

------------------

----------------

Coram : Hon Stock, J. in Court

Date of hearing : 15 August 1996

Date of judgment : 15 August 1996

----------------------

J U D G M E N T

----------------------

1. This is an appeal against sentence.

2. The appellant pleaded guilty to three offences. The first was a robbery. The facts were that at about 9:40 p.m. on 26th January 1996, the appellant and another male accosted a female aged 23 years near the Fanling KCR Station. The other man came upon her suddenly from behind and grabbed her neck whilst this appellant took from her cash in the sum of $260, her watch and a purse with money. The appellant and the other man then ran and she screamed, and two men gave chase and caught them both. On the appellant was also found a camera and gloves, a cap and a cosmetic box. This formed the basis of the charge of theft. The appellant said that he picked these up on the street or in a van. It also transpired that he was an illegal immigrant having landed unlawfully in Hong Kong. So the third offence was that of remaining in Hong Kong without the authority of the Director of Immigration.

3. There were a number of appearances before the magistrate. The appellant and the other defendant were represented. He maintained the plea of not guilty to the robbery offence until an appearance on 26th April, when he changed his plea to guilty. He pleaded guilty then to the theft charge and had pleaded guilty earlier to the immigration charge. He is aged 25 years, and so far as one knows he is a person of no previous convictions.

4. The magistrate imposed a sentence of 12 months imprisonment for the robbery charge; 15 months for the immigration offence; and one month for the theft and ordered them to run consecutively, making a total of 28 months. The magistrate said that she took a starting point of 2 years for the robbery offence but reduced the term to one year because of the plea of guilty and also because she wanted thereby to give effect to the totality principle.

5. It was in my judgment inappropriate in this case to impose a shorter term of imprisonment in respect of this charge of robbery in order to give effect to considerations of totality. She ought to have imposed the term appropriate to the offence, having given due weight to aggravating and mitigating features and then decided what was the appropriate totality and utilized the device of imposing concurrent and consecutive sentences or partly concurrent and partly consecutive sentences.

6. The robbery offence was a serious offence that took place at night and involved an attack on a single female by more than one man. I have considerable difficulty in understanding why the prosecution was instituted in the Magistrate's Court rather than in the District Court. In my judgment, an appropriate starting point for this offence of robbery was one of at least 3 years imprisonment, and in the result, the sentence imposed is manifestly inadequate. But let me hasten to say that the criticism for that does not lie at the magistrate's door. The magistrate has no jurisdiction to impose a sentence in excess of 2 years, and the Crown chose to institute proceedings where it did. It is established that the credit for a plea of guilty should in such circumstances be given from the level of the sentencing limit in the jurisdiction thus chosen, and not from the point beyond that jurisdiction which is otherwise thought to be the correct starting point (see Kwok Chi Kwan and Another [1991] HKLR 2923). In the event, the magistrate was right to take a starting point of two years, but that arises not in my judgment from the seriousness of the offence but from the limit to her jurisdiction. The credit for the plea of guilty should not in this case be as great as in the standard run because the appellant was caught red handed immediately after the offence whilst escaping from it, and the plea very late in the day. Assuming, however, the defendant has a clear record, the reduction to 18 months is not one that can be assailed.

7. Accordingly, in order that this appellant's record accurately shows what I consider to be in the unusual circumstances of this case, the appropriate sentence for the first offence, the sentence for that first offence is substituted by one of 18 months imprisonment. It would be wrong in principle in the very peculiar circumstances of this case to remedy the inadequacy of the sentence for robbery by stretching the available totality to its limit. I am bound to proceed on the assumption for totality purposes that the sentence imposed for the robbery offence is appropriate. In the circumstances, 34 months imprisonment is too long, 28 months is not and that is the term imposed by the magistrate. So I shall order that 9 months of the 15 month term for the immigration offence shall run consecutively to and 6 months concurrently with the 18 month term. And that the one month term for the theft offence run consecutively to both, making a total of 28 months.

8. As in almost every other case comes before me with appellants who are in Hong Kong unlawfully from the Mainland, that this appellant has put before me a long list of family tragedies that have befallen his family since his incarceration. I am not persuaded by any of that to reduce the term of imprisonment, apart from the fact that I am strongly disinclined to believe him. The fault for his present predicament lies entirely at his door. He is exceedingly fortunate not to have received a term significantly in excess of the terms imposed by the magistrate. The appeal is dismissed.

Representation:

Mr F. Veltro, S.C.C., for Crown

Appellant, Chan Ting Yu, in person