R. v. To Chuen Bun
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CACC000702/1995 IN THE COURT OF APPEAL 1995, No.702
------------------------------- Coram: Hon. Power, Ag. C.J., Mortimer and Mayo, JJ.A. Date of Hearing: 29 May 1996 Date of Judgment: 29 May 1996 ---------------------- J U D G M E N T ---------------------- Power, Ag. C.J. (giving the judgment of the Court): 1. The applicant in this matter originally faced one charge of robbery and one of wounding with intent. He pleaded guilty to the wounding charge and the prosecution did not proceed with the robbery charge. 2. The facts, which were admitted, were that the victim Mr. Lo Cheung, who was a 63 year old cleaning worker employed by the Peak Tram Company, was carrying out his work at about 4:30a.m. on 17th December 1994. He heard noise in the front part of the tram which he was cleaning and as he was about to raise the alarm one of two men grabbed his neck while the other struck him on the head with a brick a number of times. The wounds commenced to bleed and he courageously fought back. One of the men then placed a hard knife-like object against his neck and told him not to resist and said that they only wanted money. He stopped struggling. He remained, it seems, on the floor, and then heard the sound of coins falling. It seems that one of the two men was rifling the Community Chest donation box which contained some $16,000. Both men fled but both were later apprehended. The applicant was discovered in the grounds of the St. John's Cathedral. He made an admission under caution that he had hit the victim with a brick during the assault, that he had the intention to knock him out and that he had held him down in the compartment of the tramcar. 3. Today the applicant seeks leave to appeal against the sentence of 31/2 years imposed on the wounding charge by Judge Sweeney in the District Court. The appeal has been argued by Mr. Hung who submits that the judge erred in taking a starting point of five years. He submits that this was not the type of wounding which justified a starting point as high as that. He suggests that the injuries were not, at the end of the day, severe ones and that the offences were committed spontaneously insofar as the applicant and his fellow offender had not gone armed to the scene but had simply taken advantage of what lay to hand, namely a brick, when disturbed in their attempt to obtain money from the collection box. 4. We cannot help but remark that the applicant was in our view fortunate that the Crown proceeded with only one count. Nonetheless they did and we must deal with him upon that basis. We have given anxious consideration to this matter because we think that there was considerable difficulty posed for the judge in sentencing given that the robbery charge was not proceeded against this applicant but was proceeded with against the other offender who, overall, was sentenced to 41/2 years' imprisonment. 5. There were clearly aggravating features associated with the assault. It was intended to render the victim unconscious, it occurred at night and was perpetrated by two men who set about the elderly victim with a brick. It was undertaken to make the way clear for a theft to be committed. It is true that the injuries were slight but this was, to an extent, fortuitous. 6. Having, however, considered all of these matters and the persuasive submission of Mr. Hung, we are satisfied that the starting point of five years was too high. We have come to that conclusion after only anxious consideration and bearing in mind that this applicant must be sentenced upon the basis of the offence to which he pleaded guilty. We do, of course, bear in mind the background to the matter, but do not allow ourselves to be influenced by the fact that a robbery occurred after the assault. In all of the circumstances we are satisfied that a proper starting point would have been four years' imprisonment and, giving the discount to which he was entitled for his plea, we reduce 48 months to 32 months. 7. The application is allowed. Its hearing is treated as the hearing of the appeal and the sentence is varied to one of 32 months.
Representation: Mr. Andy Hung assigned by D.L.A. for the Applicant. Mr. J. Reading (Crown Prosecutor) for the Respondent. |