HKSAR v. TO YUK SUM

IN THE COURT OF APPEAL

1997, No. 247
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty to one count of robbery, one count of burglary, one count of theft and one count of being in Hong Kong without the permission of the Director of Immigration. He was sentenced to 4 years eight months' imprisonment on the 1st count, 2 years on the 2nd count to run from 3 years 8 months on the 1st count, 2 months imprisonment on the 3rd count to run concurrently with the sentence on the 2nd count and 15 months' imprisonment on the 4th count to run one year one month after the starting date imposed on the 2nd count.

2. The sentencing Judge, Judge Gill calculated that the total sentence to be served should be 6 years, which it was.

3. As was pointed out by Judge Gill the most serious offence was the 1st one the robbery. It occurred on 30th January 1997 inside the subway at the Tsuen Kam interchange, New Territories. This occurred late at night. The victim was a lady. The Applicant attacked her with a wooden pole causing lacerations to her head. He snatched her handbag which contained the various items referred to in the charge.

4. The burglary was committed with another illegal immigrant on the 9th February. They broke into a roof top flat at Kwun Tong, ransacked the premises and obtained a number of valuable possessions.

5. The subject matter of the theft count was a pager and the offence occurred some time in January 1997.

6. The Applicant and the other man involved in the burglary were stopped in a road search which was conducted by the police on the 12th February. They admitted being illegal immigrants and some of the items referred to in the charges were found on them .

7. Subsequent to this the victim of the robbery identified the Applicant and the victim of the burglary was able to identify some of his possessions which had been stolen.

8. Judge Gill gave the Applicant the full 1/3 credit for his guilty plea but was unable to find any other powerful mitigating factors.

9. Although the offences were separate and distinct incidents, he ordered that to some extent the sentences should be served concurrently. This was to take cognizance of the totality principle.

10. Mr. Tong for the Applicant submitted that the starting point adopted by the Judge was too high and he failed to give a sufficient discount for the guilty plea. He also called in aid the youth of the Applicant who was aged 18 at the time of these offences.

11. It is difficult to see how it can be sensibly argued that the Judge adopted too high a starting point for these offences. The robbery of itself would attract a starting point of at least seven years' imprisonment and the burglary would attract a starting point of approximately 3 years. As they were separate and distinct offences any sentences imposed would normally have been consecutive. A similar observation can be made in respect of the immigration offence.

12. However one issue does arise on this application. This is on account of the jurisdictional limit of seven years' imprisonment in the District Court. We considered R v Ho Sik Yin [1991] 2HKC212 and AG v Shek Wai Yip [1995] 2HKC371. The question which arises is whether the 1/3 discount for the plea is taken from the jurisdictional limit or the total of the starting point of the various sentences imposed which in this case was in excess of seven years.

13. Mr. Saw for the respondent pointed out if the discount has to be taken from 7 years, it effectively limits the jurisdiction of District Court to 4 years 8 months' imprisonment where a guilty plea has been entered. We do not think this can be right. In the present case the Judge gave a discount when determining each of the appropriate sentences. We consider that this was correct approach and that in the end result the correct sentence was imposed which was within the court's jurisdiction. The Applicant has not demonstrated in the circumstances that the sentences are either manifestly excessive or wrong in principle. The application is dismissed.