HKSAR v. Chan Chun Fai

CACC000414/2002

CACC 414/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 2002

(ON APPEAL FROM HCCC 189 OF 2002)

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Coram: Hon Stuart-Moore VP and Stock JA in Court

Date of Hearing: 30 January 2003

Date of Judgment: 30 January 2003

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1On 22 July the applicant was sentenced by Mr Recorder Ching Y Wong SC in the High Court to a term of 10 1/2 years' imprisonment for six robberies which he had committed in late 2001. This is his application for leave to appeal against his sentence.

2The offences were nasty. They were committed in public places, on young persons, each offence with the objective of stealing the victim's mobile telephone, and on each occasion the applicant was armed with a long knife, and on several occasions he used the knife not merely to threaten but actually to slash or cut the victim, before dashing off with the telephone. The applicant was aged almost 21 years at the date of the offences, and was not a person of previous good character. He had already accumulated two convictions for assault occasioning actual bodily harm, the latest in August 2000; and two offences of possession of dangerous drugs.

3The judge took starting points which differed according to whether the knife had been used to inflict any injuries. For Counts 2, 5 and 6, which reflected the incidents in which the knife had not actually been used to occasion injury, he took a starting point of seven years' imprisonment which, save in the case of Count 6, he reduced to four years and eight months' imprisonment to reflect the pleas of guilty; whereas for Counts 1, 3 and 4 he took starting points six months longer, namely, seven and a half years' imprisonment; which he reduced a term of five years' imprisonment to give credit in each instance for the plea of guilty. However, in the case of Count 6 he did not give the full one-third discount because he said that the applicant had been caught red-handed and that, therefore, the full discount was not warranted. He ordered that the sentences in respect of Counts 2 to 6 inclusive should run concurrently (a total of five and a half years); and that the sentence on Count 1 (five years) should run consecutively to all the others; thus making a total of ten and a half years' imprisonment. In passing these sentences, one other offence was taken into consideration.

4Mr Duncan Percy, who appears today on behalf of the applicant, takes, in effect, one point; that in relation to Count 6 the learned Recorder was not justified in not allowing the normal one-third discount to reflect the plea of guilty and he says that, to that extent, the totality is excessive. Mr Percy submits that had the judge given the full one-third discount in relation to Count 6, the totality would have been reduced to ten years' imprisonment; a totality with which he would not argue. Ms Sin, on behalf of the respondent, very properly agrees that there has in this particular respect been an error in principle. We too agree that, generally speaking, there is no justification for discounting the reduction because the applicant was caught red-handed. See HKSAR v Wong Ka-keung Cr App 35 of 1998; HKSAR v Yeung Kin-man [2000] 2 HKLRD 821; and HKSAR v LO Chi-yip [2000] 3 HKLRD 270.

5Accordingly, we grant leave to the applicant to appeal against sentence, treat this as the hearing of the appeal; set aside the sentence imposed by the Recorder on Count 6; and substitute for it a term of four years and eight months' imprisonment. Allowing the sentences on Counts 2 to 6 to run concurrently to each other, as did the Recorder, but consecutively to the term imposed on Count 1, the totality is therefore ten years' imprisonment.

Representation:

Mr Duncan Percy assigned by the Legal Aid Department for the Applicant.

Ms Mary Sin, SADPP of the Department of Justice for the Respondent.