HKSAR v. YEUNG LUNG

CACC130/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 130 OF 1999

(ON APPEAL FROM DCCC40 OF 1998)

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 25th February 1999, the Applicant pleaded guilty in the District Court before Deputy Judge P. Li to robbery and remaining in Hong Kong without authority and was sentenced altogether to four years and nine months' imprisonment. He now seeks leave to appeal against sentence on the grounds that the length of the sentences imposed was too great and also, in particular, that he has received some injuries arising from the circumstances of the case. He has added today in a lengthy letter of mitigation a number of personal matters which relate to the degree of his remorse.

2. The facts of the case were adequately summarized by the judge in passing sentence, where he described the circumstances of the robbery to have been that the Applicant entered domestic premises which were occupied at the time. He fetched a knife from the kitchen and went to rob his victim of a necklace and watch. As the judge rightly pointed out, this type of offence involving the invasion of private premises and the brandishing of a weapon is serious by any standards.

3. In passing sentence, the judge also remarked that the victim had not been injured but that the Applicant had been in the course of pursuit after the offence. The judge took into account the case of Mo Kwong-sang, (1981) HKLR 610, and rightly took a starting point of six years for this offence of robbery, which he then reduced by one-third to take into account the plea of guilty. As to the other offence, he imposed a sentence of nine months, having again correctly taken a starting point of 15 months, arriving at the combined total of four years and nine months.

4. This court is bound to agree with the judge that the kind of robbery which was involved in this case is not only very serious but fully justifies the kind of sentence that the judge imposed. The tariff sentence for the immigration offence is 15 months. This court in a number of cases in recent times has been at pains to say that in normal circumstances this should be imposed consecutively to the sentence or sentences which are imposed on other offences unless, of course, there is a good reason not to do so. In these circumstances, if there is any criticism to be made of the sentence imposed upon the Applicant, it is that he was given a sentence that was less than he should properly have expected.

5. Accordingly, in our view, the sentence must stand and the application must be dismissed. There has been no merit to this application at all and accordingly we shall order that three months of the time spent in custody by the Applicant shall not count towards his sentence.