R. v. Cheung Wai Yee

CACC000388/1994

IN THE COURT OF APPEAL

1994, No. 388
(Criminal)

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Coram : Hon. Macdougall, V.-P., Penlington, and Bokhary, JJ.A.

Date of hearing : 16 March 1995

Date of judgment : 16 March 1995

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against both conviction and sentence in respect of a single charge of robbery, which occurred in Nathan Road on 3rd May 1992. It is a matter of regret that some three years later we are still considering this matter, the trial not being until July 1994.

2. It was not in dispute that a lady in Nathan Road was robbed by two people, one a man and the other a woman, who threw pepper in the victim's face while the man snatched her handbag. The applicant denies that she was the other person involved but there was evidence of a police sergeant who was in the vicinity and followed her. He gave evidence that she was the other person involved. There was also a statement made by the applicant, which was admitted after an inquiry as to its being voluntary, in which she made a full confession.

3. We are satisfied that there was ample evidence upon which the judge was entitled to convict the applicant. The application for leave to appeal against conviction is refused.

4. As regards the sentence, one of 3 years and 3 months imprisonment, Mr. Neil Mitchell appears on instructions of the Director of Legal Aid. The main thrust of his argument is that the man involved, who was the boy-friend of the applicant, was in effect not punished to this offence. He was sentenced to two years' imprisonment on the basis of a very early plea of guilty and cooperation with the police but that term of imprisonment was ordered to be served concurrently with the sentence he was then serving of 51/2 years' imprisonment for a drugs-related offence. It is clear that both he and this applicant were at that time drug dependent and that the applicant had been to a Drug Addiction Treatment Centre.

5. It is contended that the applicant has a sense of grievance because she has received a sentence of 3 years and 3 months and her co-accused has not in effect been punished for this offence. Reliance is placed on R. v. Wong Pit Lap, Crim. App. No. 322 of 1991 where four persons were sentenced in respect of offences of bringing in illegal immigrants. There, however, as the case stated, was a wholly exceptional case in which it was quite clear that it was purely bad luck on the part of the applicants that they were not sentenced together with two other accused who had received 2 years' imprisonment whereas they received 4 years' imprisonment. The offences were almost exactly the same and as the court said that if they had been sentenced at the same time by the same judge, it could be no doubt that the sentence would have been the same.

6. Here quite different considerations applied. The 1st accused was sentenced, no doubt having in mind his reformation, on the basis that a total sentence of 51/2 years for both offences was appropriate. The judge looked at it on a totality basis. It may be that the 1st accused was fortunate but we do not think that this applicant can have any real sense of grievance. However, notwithstanding what was done in Wong Pit Lap, the principles to apply in a case such as that now before us were clearly set out in R. v. So Hung-lee [1986] HKLR 1049. They do not require repetition.

7. Finally, Mr. Mitchell raises the point that the applicant was perhaps prejudiced by the fact that, having been to a Drug Addiction Treatment Centre, she was no longer eligible for detention in a Training Centre. We do not think there is anything in that ground. It may be unfortunate that, having been to a Drug Addiction Treatment Centre, she was not eligible for Training Centre and that because of that the only option that was open to the judge was a sentence of imprisonment.

8. The sentence was one that was passed after trial. Moreover, the applicant has shown not the slightest degree of remorse for the offence which she committed. The starting point taken of 4 years' imprisonment was perfectly proper. That was discounted because the period she had been detained in a Drug Addiction Treatment Centre.

9. The application for leave to appeal against sentence passed is therefore also refused.

Representation:

Mr. Neil Mitchell instructed by D.L.A. for the applicant (re. sentence)

The applicant - In person (re. conviction)

Mr. H. Macleod for the Crown