HKSAR v. CHAN KA WAH

CACC 594/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 594 OF 1998

(ON APPEAL FROM HCCC 318/1993)

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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 in the High Court before Deputy Judge Muttrie to one count of attempted robbery and one count of robbery. He was sentenced to a total of 10 1/2 years imprisonment and seeks leave to appeal against these sentences.

2. The admitted facts are quite short:

"1. Au Yeung Choi Yin is the victim of the two offences. She was aged 41 years at the time of the first offence on 12th August 1992.

2. At 5:30 a.m. on 12th August she was sleeping alone inside her bedroom at her premises on 1st Floor, 357 Castle Peak Road, Kowloon. She was disturbed by the defendant and woke up to be told not to shout. The defendant threatened the victim with a knife.

3. The defendant searched through various drawers looking for money, until the victim's husband, Wong Kai, having returned to the premises, overpowered the defendant.

4. The defendant begged the victim and her husband not to report the incident to the police. As a result the defendant's Identity Card details B294429(4) were recorded. The defendant was allowed to go, and the incident was not reported.

5. On 5th January 1993 at about 5:15 a.m., the victim was alone sleeping in her bedroom in the same premises. She was disturbed by the defendant. The defendant entered her bedroom. The defendant was wearing gloves, holding a small knife. He tied up the victim's hands and legs with nylon string cord, pushed her onto her bed and covered her mouth with her bed cover.

6. The defendant searched the drawers but could not find any money. He beat the victim's face with his fists several times. After the incident the victim did not seek any medical assistance."

3. He stole various items of jewellery worth between $4,000 and $5,000.

4. After dealing with the facts the Judge had this to say in his Reasons for Sentence:

"Now, following the guidelines for sentencing armed robbery cases laid down in the case of MO Kwong-sang, [1981] HKLR 610, the starting point for robbery where a knife is used and which also involves the invasion of private premises, requires a sentence of at least six years. There is no real difference between attempted robbery and robbery in this kind of situation. The starting point for the sentence on the 1st charge will therefore be taken as six years.

When we look at the 2nd offence, matters were worse because not only was a knife used, not only was there an invasion of private premises, it was at night and the victim was tied up and she was assaulted. I cannot see that this offence would merit any less than eight years' imprisonment on a conviction after trial.

Now, the defendant has pleaded guilty to both the charges and he is entitled to leniency on that account. He has a long record, unfortunately, which is something which usually tends to go to reduce the amount of leniency which can be extended to one who pleads guilty, and he did not plead guilty at the first available opportunity. I do not think that the full one-third discount can be given for the plea in this situation. I think a quarter discount is probably the most that can be permitted here.

Now, accordingly, you will be sentenced on the 1st charge to 4 1/2 years, that is 54 months. On the 2nd charge, there should be a sentence of 6 years. I do not think any question of totality comes in here to reduce the sentence and require me to order that one sentence starts after the other, and that they should be partly concurrent and partly consecutive because of the, frankly, the aggravating factor that comes in here, because what you did was to go back to the same place and inflict yourself on the same victim.

Accordingly, the sentences will run consecutively and that will produce a total of 10 1/2 years - 126 months."

5. In his perfected grounds of appeal Mr. Cotsen on behalf of the applicant complains that the Judge did not pay sufficient regard to the totality principle, took into account his bad criminal record incorrectly and said that this was a reason for not giving him the full 1/3 discount for his plea and attached undue weight to the fact that the victim was the same in both cases.

6. Starting points of 6 and 8 years imprisonment would be appropriate for these offences. These were very bad cases. Mr. Cotsen did not suggest otherwise, but he submitted that the totality principle had not been properly applied after the Judge had made the necessary reductions to take into account the pleas.

7. The Judge was wrong to scale down the discount on plea on account of the bad record. This can however in other circumstances enhance the seriousness of the offence but that is a separate matter. Allowing a full one-third discount, the applicant is left with a sentence of 9 years and 4 months and, bearing in mind totality, we think justice would be served by the sentence being further reduced to 8 years imprisonment.

8. Accordingly the application is allowed. Treating it as the appeal we order that the sentences of 4 1/2 years and 6 years imprisonment which the Judge imposed should be reduced to 4 years and 5 years 4 months respectively with 1 year and 4 months of the sentence on charge 2 running concurrently with the sentence of 4 years on charge 1, making 8 years in all.

9. According we give leave and, treating the hearing as the appeal, we reduce the sentence from 10 years imprisonment to 8 years imprisonment.