The Queen v. Cheung Kwok-sheung

CACC000566/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Yang, Ag C.J Fuad & Clough, JJ.A.

Date of hearing: 16th February, 1988.

Date of judgment: 16th February, 1988.

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J U D G M E N T

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Clough, J.A. (delivering the judgment of the Court):

1. The applicant is an illegal immigrant. He applies in person for leave to appeal against concurrent sentences of 9 years' imprisonment passed on him by Hopkinson J when he pleaded guilty in the High Court to 2 charges' of robbery. He was24 years of age when convicted and sentenced.

2. The first offence was committed on the 27th June 1987 within 5 days of the applicant's illegal entry into Hong, Kong The applicant and two confederates entered a finger pressing establishment in Mongkok at about 11 p.m. They were armed with knives and a large realistic looking imitation automatic pistol. They proceeded to rob two of the occupants of the premises of money and valuables worth about $20,000. All the offenders escaped on that occasion.

3. The second offence was committed eight days later on the 5th July 1987 at about 4:10 a.m. in another finger pressing establishment in Mongkok. The applicant and two other men again armed with knives and an imitation pistol entered the premises and robbed the occupants of cash and valuables worth about $22,000.

4. On this occasion the police were called by the manager of the premises and, although his two companions escaped, the applicant was arrested after a struggle in a lane at the rear of the premises. Some of the stolen property was found on the applicant. A chopper and a knife and the imitation pistol were found in the lane. About $6,000 worth of the stolen property was eventually recovered.

5. On these admitted facts the judge said he took a very serious view of the offences and that he would have passed a sentence of 10 years imprisonment for the second offence alone if there had been a plea of not guilty He considered that he could not give much credit for the applicant's plea of guilty because some of the stolen property was found on him when he was arrested near the scene immediately after the second robbery The judge also emphasised that the offences had been commltted within 5 and 13 days respectively of the applicant's illegal entry into Hong Kong. He gave no weight to the indication by the applicant at the time that he was prepared to give evidence for the Crown.

6. In our view the judge cannot he faulted in his approach when he imposed concurrent sentences of 9 years' imprisonment in this case. The robberies were aggravated by the use of knives and a realistic imitation firearm by a combination of men committing robbery in hours of darkness in premises to which the public have access. Would-be illegal immigrants must be made aware that if they come to Hong Kong and commit offences of this nature they must expect to be dealt with severely.

7. We agree that in the circumstances of this case the applicant's plea of guilty merited only the modest discount it received and we consider that the totality of the concurrent sentences was right.

8. In his notice of application the applicant appeals for clemency because he feels he has done a disservice to his handicapped sister in China who has been dependent upon him in the past. He also claims to have always had a job and never been in trouble before. These are not matters which, in our view, merit any variation of the sentences imposed.

9. However, he has told the court today that he is prepared to he a Crown witness. Counsel for the Crown has confirmed that he has given information to the police (this was subsequent to his being sentenced) and that as a result a person is going to be charged with committing both the robberies in question.

10. In our view, although the applicant certainly does not come within the "super grass" category, his conduct in giving the information he has given, which appears to be likely to be of considerable assistance to the Crown, has resulted in a situation where there should be some discount in his sentence. We therefore propose to reduce the sentences from 9 years concurrent to 7 years concurrent and to allow the application and the appeal to that extent.

Representation:

Applicant Cheung Kwok-sheung in person.

A.A. Bruce (Crown Prosecutor) for Respondent/Crown.