HKSAR v. MOK YIN

CACC 280/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 280 OF 2000

(ON APPEAL FROM HCCC 109/2000)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant pleaded guilty to one count of robbery and one count of attempted robbery before Deputy Judge Tong (as he then was) in the High Court. He was sentenced to 4 years imprisonment on each count which the Judge ordered to be served consecutively and concurrently with a term of 15 months imprisonment imposed upon him in another case for being in Hong Kong without the permission of the Director of Immigration.

2. The facts were all too familiar.

3. The victim of the robbery on the first count a lady was returning home from work on the evening of 29 December 1999. After getting off the bus at the end of Tate's Cairn Tunnel she walked along Hang Shin Lane. She saw a man walking towards her from the opposite direction. When he was near her he produced a 10-inch long fruit knife and demanded her money. She was so frightened that she sat down and dropped her bag to the ground. The man picked it up and took away $120 and her cosmetic bag. He then ran off. When she got home she made a report to the police. Subsequently she was able to identify the applicant.

4. The incident in relation to the second count took place three days later in the same vicinity. Here the victim was a man. He was attacked by the applicant with an 8-inch knife. He managed to ward off the attack with a cardboard box. At the critical juncture a car came past and the victim was able to raise the alarm. Two men jumped out of the car in pursuit of the applicant and managed to catch him. The victim by this time caught up with them and a report was made to the police. When they arrived the applicant was arrested.

5. According to the principles laid down in R v Mo Kwong-sang [1981] HKLR 610 a sentence of the order of 6 years imprisonment is appropriate for these types of offences. Although the second offence was only an attempted robbery this can be offset by the fact that the applicant lunged the knife at the victim.

6. While the sentences were separate and distinct it would often be the case that some reduction would be made to reflect the overall criminality involved.

7. What needs to be borne in mind is that the Judge did give some discount to the applicant by making the sentences wholly concurrent with the immigration offence. The usual 15 months sentence should be ordered to be served consecutively to any other offences for which the defendant has been convicted. At the time of passing the sentence which was in July the applicant would have served about 6 months in prison. That would mean that if the whole of the sentence would have been served approximately 9 months would have remained outstanding. If he received the usual remission he would have been "spared" approximately 4 months as a result of the Judge's order. The question which then has to be considered is whether that would have been a sufficient discount to take into account the sort of reduction usually made to take cognisance of the totality of a defendant's criminality. We think that it was.

8. On considering the matter as a whole it cannot be said that the overall sentence was either wrong in principle or manifestly excessive. The application is dismissed.