The Queen v. Mak Cham-tin

CACC000112/1988

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BETWEEN

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Coram: Hon. Yang, C.J., Penlington, J.A. & O'Connor J.

Date of Hearing: 15th & 16th June 1988

Date of Judgment: 16th June 1988

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J U D G M E N T

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O'Connor, J. (delivering the judgment of the Court):

1. This is an application for leave to appeal against sentence. The applicant. is a 38-year-old man who pleaded guilty to two robberies, a theft and an offence of possession of an offensive weapon. These were all separate and distinct offences committed on different days over a three-week period.

2. The District Judge sentenced him to 1 year' imprisonment on the theft, 6½ years' imprisonment on each robbery and 6 months for possession of an offensive weapon, and he ordered all sentences to run concurrently with each other. The application for leave to appeal is in respect only of the robbery sentences. The position is that the police stopped and searched him and they found a long-folding knife tucked into the waist-band of his trousers. That is the subject matter of the possession of offensive weapon offence. The victims of the robberies were females who the appellant, at knife point, robbed of their personal belongings in lifts. The theft charge related to stealing a ring from an unknown person and it was the appellant who revealed that offence to the police.

3. The appellant asked the District Judge to take nine other robberies into account and the District Judge did so. In each of those nine robberies a knife was used to threaten. They took place over a two month period, which included the period of the offences with which he was actually charged. His criminal record showed eleven pleas of conviction for dishonesty, including 8 for robbery. In his grounds of appeal, drafted by himself, he says that he pleaded guilty, cooperated with police and gave assistance to them in several cases, on the understanding that they would ask for mercy, from the Judge, on his behalf and that at the most sentences could run concurrently and be of a total of 4 to 5 years. He complained that the police did not keep their promise, as to begging for mercy on his behalf. We do not know whether those allegations are true or not, but going on the basis that they are true, they are urged as grounds for a reduction in sentence. For the disposal of this ground it is sufficient to refer to the case of R. v. Scales 1987 HKLR 583, where it was held that Court would not be bound by any such agreement, if such an agreement were in fact made.

4. Another ground of appeal is that not sufficient discount for the pleas of guilty had been given, in view of the accounts are credited was given in the light of the fact that the District Court Judges' sentencing jurisdiction was limited to 7 years. It is said that sentences of 6½, years meant he was not getting sufficient allowance for pleading guilty, and that other persons who might be inclined to plead guilty in similar circumstances would not have sufficient encouragement to do so.

5. The District Judge, in his Reasons for Sentence, said that he considered that the overall sentence which the accused should have received, for the offences before the Court, taking, into consideration the 9 other robberies committed by the accused, was one of 9 years, but his jurisdiction only went to 7 years and taking into account his plea of guilty, he passed a sentence of 6½ years.

6. We are of the opinion that 6½ years cannot be criticized in these circumstances and this man was being sentenced for a theft, a possession of offensive weapon, two robberies all four being separate and distinct offences, committed on different days, and in addition robberies were being taken into account. He should consider himself lucky. The application is dismissed.

Representation:

Mr. M.D. Wilson Crown Counsel for Crown.

Mr. John McLanachan (D.L.A.) for Applicant.