HKSAR v. Chan Sin Leung

CACC000464/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.464
(Criminal)

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

Coram: Hon. Power, V.-P., Mortimer, V.-P. & Mayo, J.A.

Date of Hearing: 9 December 1997

Date of Judgment: 9 December 1997

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

J U D G M E N T

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

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

1. The applicant in this matter pleaded guilty to one charge of robbery and one charge of assault with intent to rob. The particulars of the robbery charge were that on 16th April 1997, outside Tsing Chung Koon rear door, Tsing Chung Koon Road, Tuen Mun, he robbed Sung Tak-sing of $600 in cash. The assault with intent to rob charge particularized that some two weeks later on 27th April, outside Leung Wah House, Tin King Road, Tuen Mun, he assaulted Chung Fong Sang with intent to rob.

2. The trial judge when sentencing said:

"You are to be sentenced on charges 1 and 2 in this case of robbery and assault with intent to rob, both taxi robberies committed within a few days of each other.

In both cases you produced a weapon to the driver. In the second case, the driver was actually injured by the knife but because that was a result of a movement made by him, I shall not treat that as an aggravating fact in your sentence. I will also take into account that you did act alone in these two robberies.

I take the lower range of sentences for taxi robberies as the starting point in your case. This is 5 years as a starting point and for the total of the two offences combined, a starting point of 6 years is taken. You were caught red-handed in one case but you have pleaded guilty to both charges and after giving you credit for that, I fix your sentence at 4 1/2 years' imprisonment in each of these two cases.

I have considered the training centre report but I am of the view that a training centre order is not a reasonable alternative to a prison sentence in your case. The two sentences are concurrent.

3. The trial judge, as he was entitled to do, took the lower range of sentences for taxi robbery. Indeed, given the starting point of six years, in our view he took a sentence that was at the very bottom of the appropriate range.

4. The only question before us, and it is the one which was posed by the applicant himself, is whether he was given the proper discount for his pleas of guilty. The judge does not state that a discount of 25% rather than the customary one-third was applied because the applicant was caught red-handed at the scene of the second offence. We have said in this court that, if a judge sees fit to reduce the discount from the normal one-third, he should make it plain why he does so. There was a failure so to state in the present case. That being so we allow the appeal and order that the sentence be one of 4 years and not 4 1/2 years.

5. The hearing of the application is treated as the hearing of the appeal. The appeal is allowed and the sentence is varied from one of 4 1/2 years to one of 4 years on each charge. They, of course, will remain concurrent.

Representation:

Mr. R.G. Turnbull (D.P.P.) for the Respondent.

Applicant in person.