R. v. YU MAN WU

IN THE COURT OF APPEAL

1995, No. 214
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. On March 24 this year, before HH Judge Caird in the District Court, this applicant, a man aged 30, pleaded guilty to the two offences with which he had been charged, namely robbery and remaining in Hong Kong without authority having landed unlawfully.

2. The judge sentenced him to six years' imprisonment. That was by way of a term of that duration for robbery and a concurrent 15 month-term for remaining.

3. He now seeks leave to appeal against sentence.

4. The facts, shortly stated, are as follows. The applicant was an unauthorized entrant from China. Having come here, he found himself in very difficult circumstances. And on the afternoon of July 9 last year, he followed a woman into a lift in Cheung Wah Estate. He had a chopper with him. But initially he did not use it. What he did was to snatch the victim's handbag as the lift doors opened on the floor for which she had pressed, the sixth floor.

5. She resisted. There was a struggle. He took out the chopper. But he did not chop her. Instead he hit her with the handle of the chopper. She suffered lacerations over her occiput, her left eyebrow and her right wrist. The injuries were relatively minor. One can easily imagine what they would have been like if the blade had been used.

6. In trying to escape, the applicant climbed over the parapet of the open corridor on the sixth floor, lost his footing and fell to the ground floor. He was badly hurt and spent six months in hospital. But, we are told by his counsel, he has suffered no permanent disability.

7. In taking a starting point of 6½ years, the judge took, we think, too high a starting point: having failed, we think, to recognise that the offence started off, after all, as a snatching and that, even when the chopper was produced, the applicant did not use the blade on the victim.

8. Also, we think that the humanitarian considerations thrown up by the severe injuries which the applicant suffered when trying to escape had not been given sufficient weight.

9. For all that, the offence must be regarded as a serious one. Robbery is always serious; and bringing along a weapon like a chopper is a heavy element of aggravation, even if in the result nobody was actually chopped.

10. All things considered, we think that a starting point of six years is appropriate.

11. In giving a discount of only six months for the applicant's pleas of guilty - for that is the discount which he gave - we think that the judge gave too little by way of such a discount. It is true that defending the case would have been very difficult. And it is also true that the amount of time saved by the guilty pleas in this case was not very great.

12. Nevertheless, it is the policy of the law to encourage guilty pleas by guilty persons. So this applicant should have been given a substantial discount. It did not have to be as much as the discount due to someone who pleads guilty despite the fact that the prosecution case is not as overwhelming as it would be if, for example, he had been caught "red-handed". Nor did it have to be as much as the discount due to someone whose guilty plea saves a lot of time. But it ought to have been substantial nevertheless.

13. We think that the discount here should be something more - and we think considerably more - than six months. All things considered, we think that the discount should have been one of 18 months.

14. The judge's decision to make the two terms - the one for robbery and one for the remaining - concurrent is not one which we consider it right to disturb. Strictly speaking, they were separate offences. But when one takes into account what the principle of totality required , we think that the course adopted by the judge in this regard is defensible.

15. In the result, therefore, the application for leave is treated as the appeal itself; and the appeal is allowed so that the sentence on the applicant is reduced from six years in all to 4½ years in all.