THE QUEEN v. WONG TO

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JUDGMENT

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Ching JA (delivering the judgment of the Court):

1. The applicant was convicted on his own plea to two charges. The first was one of robbery for which he was sentenced to a term of imprisonment of three years and three months. The second was for remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully for which he was sentenced to a further term of imprisonment of nine months, three of which were to be served consecutively to the first sentence. He was therefore sentenced to imprisonment for three years and six months and he seeks leave to appeal against sentence.

2. The applicant is an illegal immigrant aged 25. At 10 a.m. on the morning of 12th January, 1996, he came up from behind a woman walking along the Tai Po Road near Lung Cheung Road. He produced a paper cutter and uttered the word "robbery". He pulled at her jacket. She was so frightened that she ran away and in so doing she dropped her wallet. She fell but got up and ran until she saw another man from whom she sought assistance. The police were called. Upon returning to the scene they found the wallet from which about $80 and a coin purse had been removed. Another man who was apparently performing his morning exercises in the vicinity assisted the police in their search but the applicant was not found. The police left. The man continued his exercises and was then approached by the applicant who asked to be taken to the police station. At the station the applicant admitted his offences. $66.50 was recovered. At an identification parade later the victim was unable to identify him. Subsequently he pleaded guilty at the first opportunity.

3. The District Court Judge adopted a starting point of five years for the robbery. The grounds of appeal assert that this was too high. It was not. This was a robbery in the middle of the morning and carried out with some violence. Paper cutters are very sharp instruments. They are small so that they may easily be concealed about the person and they are wieldy. The fear that was put into the victim is attested to by the fact that she ran away notwithstanding that the applicant had hold of her jacket and that she continued to run after her fall. The starting point accords with the guidelines set out in Mo Kwong Sang (1981) H.K.L.R. 610.

4. Another complaint in the grounds of appeal is that the Judge made part of the second sentence consecutive with the first. Yu Man Wu (1995 No. 214, Criminal, unreported) is mentioned in this regard. In that case the sentence for remaining illegally was made concurrent with a sentence for robbery. This Court did not think it right to disturb that sentence although the two offences were strictly different. This Court considered that the concurrent sentence was correct on the totality principle. The decision is not authority for the proposition that sentences for remaining illegally should generally be concurrent with those for other offences committed during the illegal stay. In the vast majority of these cases the police do not know when the illegal entry has been made. The unlawful remaining comes to light only upon the occasion of the other offence being committed.

5. Next it is argued that insufficient discount was given for the mitigating circumstances. The Judge gave a discount of 21 months from her starting point of five years. That was just one month more than the usual discount of one third for a plea of guilty. We think that in the circumstances that was too little. She does not appear to have given sufficient weight to the fact that the applicant may never have been apprehended but for the fact that he surrendered himself. Indeed, even if he had been apprehended the victim was unable to identify him and there would have been no evidence upon which to prosecute let alone to convict. This appears to have been a case of true remorse and in the quite exceptional circumstances we think that six months rather than one month further discount should have been given.

6. The application for leave to appeal against the sentence imposed on the robbery conviction therefore succeeds to the extent that the sentence of three years and three months' imprisonment is reduced to one of two years and ten months. Treating this application as the appeal itself we allow the appeal to the extent indicated. We therefore reduce the sentence on the robbery conviction as stated so that the applicant will serve a total sentence of three years and one month.