R. v. Kuk Cho-lai, Daniel

CACC000746/1995

IN THE COURT OF APPEAL

1995, No.746
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer and Mayo, JJ.A.

Date of hearing: 26 November 1996

Date of judgment: 26 November 1996

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced one count of robbery which particularized that he on 2nd November 1993 at the King Seng Jewellery Company on the third floor of the Commercial Centre of Shun Lee Estate, robbed Koo Chung Kit of 36 gold bracelets, valued at $86,331. He pleaded guilty before Stuart-Moore J. and was sentenced to imprisonment for 6 1/2 years. He now seeks leave to appeal against that sentence.

2. The admitted facts revealed that at about 1225 hours on 2nd November 1993, the applicant went into the jewellery shop which was on the third floor of the Commercial Centre and asked to look at gold ornaments. Having been shown one, he demanded that the shop attendant take them all out saying that he did not want to hurt anyone. He then lifted his wind breaker to reveal what appeared to be a pistol tucked into his waist. It was, in fact, an imitation weapon. The shop attendant complied with his demand and handed over 36 gold bracelets. He put these into a bag and fled. Although the alarm was immediately raised, he was not apprehended and made good his escape, eventually pawning the gold bracelets in Macau. The surveillance cameras had, however, taken five photos of him and it was these which led to his apprehension on 15th June 1995, some 19 months later. He says that he obtained a total of $50,000 odd when he pawned the bracelets and that he used that money to repay a loan shark.

3. The applicant had no record at the time when he committed this offence and in mitigation it was said that he had for eight years been an auxiliary police officer. The mitigation stressed that he was not carrying a real gun at the time.

4. The trial judge when sentencing said:

"I bear in mind all the matters brought to my attention by your counsel to whom you should be very grateful for his care in presenting your case. In particular, I had in mind your previous good character, the fact that this was an imitation gun and that it was not drawn from your waistband. Your plea of guilty and your co-operation with the police will stand you in good stead. Had it not been for your plea of guilty, you would have received without any question a sentence of ten years' imprisonment.

It is often said that people are remorseful. Usually that means that people are sorry for themselves because they have been caught. But I'm satisfied in your case that you really are.

The fact remains that this case amounts to a serious crime which merits a lengthy term in custody. Having regard to the factors that I have already mentioned, I propose to reduce your sentence by the very most that I feel I can. The sentence in your case will be six and a half years' imprisonment."

5. The applicant in his written grounds of appeal first suggests that the starting point was too high. We have considered with care this suggestion. We agree that the starting point is at the top of the range for an offence of this kind but we cannot say that it was manifestly excessive. He then suggests that the mitigating factors were not given full weight, in particular that it was not a real gun, that he was acting alone, that he had a clear record, that he was remorseful, as the judge accepted, and that he had to an extent reformed himself insofar as he was, when apprehended, working in a steady job and was held in good regard by his employer. He submits that in all those circumstances the discount should have been greater.

6. He points to the fact that a one-third discount is customarily allowed for a plea of guilty allow and that, he was given only slightly more than one-third.

7. We take into account all he has urged. Indeed all of the matters were considered by the trial judge. We do not feel that any real weight can be given to the suggestion that he had reformed himself as he stood, at the time of apprehension, in the position of a criminal who successfully perpetrated an offence which had netted him $50,000. He can, we are satisfied, obtain little benefit from the suggested "reformation". The judge gave careful consideration to all relevant matters. He gave a slightly more than one-third discount. We are not persuaded that the sentence was manifestly excessive. The application must, therefore, be refused.

Representation:

Mr. Francis Lo, A.P.C.C. (Ag.) (Crown Prosecutor) for the Respondent.

Applicant in person.