R. v. Cheung Chi Kuen

IN THE COURT OF APPEAL

1995, No. 50
(Criminal)

____________

____________

Coram: Litton V.-P., Bokhary and Mayo JJ.A.

Date of hearing: 19 May 1995

Date of judgment: 19 May 1995

_________________

J U D G M E N T

_________________

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

1. This is an application for leave to appeal against sentence. The applicant faced one count. It was of robbery.

2. On January 5 this year, he appeared before Saied J and pleaded guilty to that count. These are the facts which he admitted:-

"No. 64 Kilung Street, 3rd floor, Kowloon, Hong Kong is a flat that consists of two households, one occupied by Mr LO Tak-wai and his wife, the other occupied by CHAN Yim-chi and her daughter FONG Sai-li. At about 4:10 a.m. on 28th September, 1991 the defendant together with two accomplices broke into the flat through the kitchen window. The defendant carried a chopper which he had picked up from the kitchen. After an initial struggle with one of the robbers, Mr LO told the robbers that they could take the money in his wallet. HK$300 was taken from Mr LO's wallet by one of the robbers. They then went into the part of the flat occupied by CHAN Yim-chi and FONG Sa-li by forcing the door. One of the robbers asked CHAN for some money and she gave him $400. FONG was tied up. The premises was then ransacked.

The following additional items were stolen from the premises during the robbery : HK$2,000, one ring, one golden coin, one Hi-fi set, two cash withdrawal cards, one cash cheque in the sum of $100 Hong Kong dollars, one Hong Kong Identity Card No. XXXXXXX(X) and one Hong Kong Passport numbered 6060XXXXX.

The defendant and his accomplices left through the front door after which the victims reported the case to the police.

Police enquiries had identified the defendant as a suspect in the robbery back in 1991. The defendant however was only located and arrested in July, 1994.

Under caution, the defendant admitted the offence after the police put to him that his fingerprint was found on a metal box in victim FONG's room."

3. The applicant is now in his early 20's. He was 18 at the time of the robbery. Before that he had been in trouble with the law once. In 1988, when he was 15, he was bound over for common assault.

4. In passing sentence, the judge rightly had regard to the sentencing guidelines laid down by this Court in R. v. Mo Kwong-sang [1981] HKLR 610, bearing always in mind of course that those were guidelines. The judge rightly noted: that the robbery here was one in which a number of robbers invaded domestic premises during the hours of darkness; that a weapon was displayed; that number of persons were victimised; and that one victim was tied up.

5. Taking a starting point of 10 years, the judge discounted that (essentially for the guilty plea) by two years to arrive at a sentence of eight years' imprisonment. And that is the sentence which he passed.

6. Three grounds of appeal have been advanced. One of them has to do with the alleged discrepancy between the sentence passed on this applicant and the one passed on his co-accused Chung by another judge on another occasion. We would view any such discrepancy as immaterial.

7. The other two grounds go to the starting point selected by the judge and the evidence which, since he was sentenced, this applicant gave at the trial of his co-accused Chan.

8. As far as the starting point is concerned, 10 years might be said to be on the high side here.

9. As to the discount which he earned by giving evidence against his co-accused Chan - which appears to have prompted that co-accused to change his plea from one of not guilty to one of guilty - there is no doubt that the applicant earned a substantial discount in addition to the one to which he was entitled when he was before the sentencing judge. At that time, there was only a promise to give such evidence; and the judge rightly left such additional discount to be given upon fulfilment of the promise.

10. Although no separate point was taken in regard to the two-year discount given by the judge essentially for the guilty plea, it might be said that it could have been higher. But all of that is subsumed by the fact that the total discount to which this applicant is now entitled takes into account everything including that plea.

11. Bearing in mind that the starting point was somewhat high, and bearing in mind that the accomplice evidence which he gave was very helpful to the prosecution, we think that all told this applicant should be left with a sentence of five years' imprisonment. Treating his application for leave as the appeal itself, we allow that appeal to reduce his sentence from one of eight years' imprisonment to one of five years' imprisonment.

Representation:

Miss C. Draycott (instructed by the Director of Legal Aid) for the applicant

Mr D.G. Saw (of the Attorney General's Chambers) for the prosecution