HKSAR v. Cheung Ming

CACC000634/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.634
(Criminal)

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Coram: Hon. Power, Ag. Chief Judge H.C., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 19 February 1998

Date of Judgment: 19 February 1998

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J U D G M E N T

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Power, Ag. Chief Judge H.C. (giving the judgment of the Court):

1. This applicant pleaded guilty before Deputy Judge Wilson to four counts of robbery. They were counts B, D, E and F. The other counts in the indictment were not proceeded with. He was sentenced to 1 1/2 years on counts B, E and F and to 2 1/2 years on count D. All of the sentences were ordered to be consecutive, making an overall sentence of 7 years. He now seeks leave to appeal against that sentence.

2. The facts were as follows and I will take them in sequence starting with the earliest offence.

3. On 8th February 1997, a Mr. Hui Yun-lin, at about 9:45 p.m., took a lift up to his residence in Tin Chu House, Shun Tin Estate, Kowloon. There was another person, who was the applicant, in the lift and soon after the door closed, the applicant took a sharp knife from his upper garment, pointed it at Hui and said that it was a robbery. Hui was, understandably, very scared and he gave $1,440 to the applicant who left the lift on the 7th floor and disappeared.

4. The next offence occurred on the following night at 10:20 p.m. when a Mdm. Wong Wai-yee was taking a lift to her premises in Tin Kuen House in the same estate. Again, the applicant entered the lift with her, took out a knife from his right sock and said that it was a robbery. She, again understandably, was very afraid and handed over two rings and $800 in cash. The applicant shortly thereafter left the lift and fled.

5. The next offence occurred on the following night, 10th February. On that occasion, the victim was a Mdm. Cheung Mei-kuen, aged 23. When the lift reached the 18th floor, the applicant pointed a knife at her, asked for money and eventually obtained an amount of $120. She was forced then to give up her gold necklace as the applicant was not satisfied with the amount of money. However she struggled and held the knife in her hands while she shouted for help. This resulted in a cut to her left hand. Again the applicant left the life and escaped.

6. The last offence occurred about 24 hours later when Mdm. Yeung Sau-han was menaced with a knife in a lift as she was going to her home in Tin Kam House, Shun Tin Estate. She was scared and gave the applicant $570. He again, made good his escape. He was, however, intercepted by patrolling police officers some five days later and, having initially denied the offences, after having been identified, he admitted his involvement.

7. The applicant, in the magistrate's court, pleaded guilty to all four counts and admitted the summary of facts.

8. The trial judge, when sentencing, said:

".... He readily admitted the four robberies.

He is 34 years of age and has 12 previous convictions, mostly for drugs. There is one for robbery in 1985. Although the treatment centre report says he is not currently addicted, he obviously has a serious drug problem and his history shows many attempts at treatment by methadone and other treatments.

He was diagnosed to have nasal cancer in 1995 and has been undergoing treatment since for that. Side effects of that treatment have been the loss of his teeth and the possible loss of the sight of one eye, and he appears to have a mild psychiatric problem, not serious enough to warrant in-patient treatment and probably contributed to by abuse of drugs. In the result he presents a rather pathetic figure, health wise.

I note that he shows remorse and I note that he has a supportive family. In the case of the three cases where the knife was merely displayed, I would select a starting point of 5 years and in the case where minor injury was caused with the knife, I would select a starting point of 6 years. However, I must bear in mind the totality principle, the fact that the series and robberies were committed consecutively on four consecutive days. I bear in mind the supportive family of the accused and his pathetic health situation. I therefore reduce the total period involved and adopt an overall global starting point of 10 years. From that I deduct 3 years for his pleas of guilty and the result is an overall global figure of 7 years."

9. It is urged by Mr. Chung, who appears for the applicant today, that the sentence of seven years was manifestly excessive and wrong in principle as the trial judge failed to give sufficient discount to all of the mitigating factors, "in particular the early plea and the pathetic health of the applicant".

10. The trial judge's overall starting point was 21 years which he reduced because of totality and, it seems, the mitigating factors, to ten years. He then deducted three years for plea, arriving at a sentence of seven years. We have no doubt that the judge had in mind all of the mitigating factors that were urged and no complaint can properly be made of a failure to take them into account. He also had in mind the plea. However, it is established practice that a timely plea of guilty will attract a discount of one-third. There was, in the present case, a timely plea. This court has said, and we repeat, that where a trial judge does not give the full one-third discount, he must state his reason for not so doing. No reason was given here and we are satisfied that the applicant was, because of his pleas, entitled to the full one-third.

11. The application and the appeal will succeed to that extent. The appeal is allowed and the sentence is varied from one of seven years to one of six years and eight months.

Representation:

Mr. Albert Wong, S.G.C. (D.P.P.) for the Respondent.

Mr. Bernard Chung assigned by D.L.A. for the Applicant.