Pak Tak-shing v. R.

CACC000499/1992

1992, No.499
(Criminal)

IN THE COURT OF APPEAL

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Coram: Hon Silke, V-P., Penlington and Nazareth, JJ.A.

Date of hearing: 4 May 1993

Date of judgment: 4 May 1993

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J U D G M E N T

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Nazareth, J.A.:

1. The applicant pleaded guilty in the District Court on the 23rd October 1992 to robbery, contrary to s.10(1) and (2) of the Theft Ordinance, Cap.210 and was sentenced on the 13th November 1992 by H.H. Judge Britton to 5 1/2 years imprisonment. He now applies for leave to appeal against that sentence.

2. The particulars of the charge were that he and one Wong Chi- keung on the 9th September 1992 at Wanchai robbed three persons of amounts of $550, $200 and $7,500 in Hong Kong currency.

3. The facts were that a Dr Tam had his clinic on the 2nd Floor of 192 Johnston Road in Wanchai. Shortly after mid-day on the 9th September 1992 both the applicants and Wong who was his stepbrother, visited the clinic posing as patients. The applicant produced his identity card to the nurse who made entries in a patient registration form. The two then produced beef knives and declared it was a robbery. The nurse was frightened into handing over $550 in cash and the two then went into the consulting room and obtained $200 from a patient who was there and $1,000 from the doctor. The applicant who had pointed his knife at the doctor was not satisfied with the $1,000. He searched the doctor's handbag and found a further $6,500 in cash. The two then ordered the doctor, the nurse and the patient to stand still and they made off. The applicant was arrested later that evening. He was charged and cautioned and gave a statement admitting everything and giving information about the whereabouts of his stepbrother.

4. In sentencing the applicant, the judge said this:

" PAK tak-shing, in broad daylight you and your stepbrother walked in a doctor's clinic and robbed not only the doctor and his nurse but also a patient at the points of beef knives. They must have been terrified. Such banditry will not be tolerated. It will be punished severely.

The guildlines in the leading case of R. v. Mo Kwong Sang (1981) HKLR 610 provide for a sentence of six years imprisonment where an armed robbery with knives is committed on private premises. Where more than one person is involved in the robbery the sentence should be increased.

The current starting point in your case is seven years. With the greatest possible respect to Mr Wong [counsel who appeared for the applicant before the judge] to suggest that I should dispose of you by means of a detention centre order concurrent to your existing order, or by means of a short, sharp sentence, is completely unrealistic.

To your credit is the fact that you have pleaded guilty. You are still only 19. Those facts entitle you to a discount by way of reduction of sentence.

It is true no violence was used. That, of course, precludes a higher sentence still.

You will go to prison for 5 1/2 years."

5. Mr Ashok Sakhrani who appears for the applicant, but who, as I have indicated, did not appear below, makes three submissions. First, he submits that having regard to the guidelines in Mo Kwong-sang, [1981] HKLR 610, the learned judge adopted too high a starting point. He submits that in Mo Kwong-sang, the level or tariff of 7 years was reserved to circumstances where physical violence was used. And although he concedes that the presence of more than one person is an aggravating factor that entitles a court to add to the tariff of 6 years for the carrying of weapons, he submits that it did not justify the court taking 7 years as a starting point.

6. In Mo Kwong-sang Roberts C.J. said that an appropriate sentence for robbery where a knife was carried and displayed is five years. If there was invasion of private premises it is six years. If there was more than one robber that was an aggravating factor and called for a further increase. Here the judge has increased the starting point for that last factor by one year. We do not consider he was wrong to do so on the facts here.

7. Mr Sakhrani's second submission was that having taken his starting point, the judge did not give sufficient weight to the factors before him in assessing the discounts applicable. The factors Mr Sakhrani refers to are these:

First the applicant's plea at his first appearance in the District Court on plea day which was, as I have said, the 23rd October 1982. He submits that factor has to be considered in the context of the age of the applicant, which at the time of plea, was 19. Clearly, the plea was made very early. In fact, unusually early, and although it was taken into account in the context of the age by the judge, we think that early pleas should be encouraged even where, as here, there were some inevitability about the arrest of the applicant and probably his conviction given that he himself handed in his identity card to the nurse. We think in the circumstances that the discount given by the judge in this respect was not sufficient.

Second, the assistance the applicant gave to the police, particularly in regard to the whereabouts of his stepbrother, which may have well been instrumental in the latter's arrest. There is no mention of this in the judge's reasons for sentence, and this is a factor for which some discount should have been given.

Third, Mr Sakhrani submits, that the applicant was led to rob by his elder stepbrother who was at the time 22 years, not very much older, but he reinforces that suggestion by reference to the applicant having somewhat naively handed in his identity card. Moreover, he suggests that the elder stepbrother provided the weapons and retained most of the takings. We see little merit in this point.

Fourth Mr Sakhrani relies upon the age of the applicant and the fact that he had not been to prison before. But he did have previous convictions, and we think that in all the circumstances, he was not entitled to any discount on this ground.

Finally, Mr Sakhrani in his third submission submits in the context of the totality of the sentence of 5½ years imprisonment that it was too high. In that context, as we have indicated, we think the sentence of 7 years was not wrong. However, we think the discount of 1 1/2 years did not fully reflect the two factors we mentioned - the unusually early plea of guilty, something we think should be encouraged, and the assistance given to the police. We think that an appropriate discount would have been of the order of 2 1/2 years.

8. Accordingly we grant leave to appeal, treat the hearing of the application for leave as the hearing of appeal, allow the appeal and reduce the sentence to 4 1/2 years.

Representation:

Mr D.G. Saw and Mr Charles Chan for Crown/Respondent

Mr A.K. Sakhrani (M/s Simon C.W. Yung & Mok) for Applicant