HKSAR v. NGUYEN VAN DONG

CACC 213/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 2004

(ON APPEAL FROM DCCC No. 356 OF 2004)

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JUDGMENT

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Hon. Yuen JA:

1. This is an application for leave to appeal against sentence. On 3 May 2004, the Applicant was tried before Barnes D.J. on a charge of robbery. On 14 February 2004 the Applicant and his co-tenant were in the stone hut they shared when the Applicant approached the co-tenant for a loan. When the co-tenant refused and returned to his own room, the Applicant followed the co-tenant into the room and pointed a pair of scissors at his neck. As a result of this threat, the co-tenant was compelled to give the Applicant a watch and a gold ring. The Applicant also took $900 from the co-tenant's wallet. He was arrested 10 days later. The Applicant pleaded guilty before the trial judge, and was sentenced to a term of imprisonment of 3 years and 8 months.

2. The Applicant's ground of appeal against sentence is simply that the sentence was too severe.

3. The sentence imposed by the trial judge was in accordance with the sentencing guidelines for robbery set out by the Court of Appeal in Mo Kwong-sang v R [1981] HKLR 610 and affirmed more recently by the same court in Secretary for Justice v Ma Ping-wah [2000] 2 HKLRD 312. The Court of Appeal held in Mo Kwong-sang that the appropriate sentence (after trial) for robbery involving the display of a weapon (excluding firearms) was 5 years imprisonment. Where this involved an invasion of private premises, a sentence of 6 years would be appropriate. Since the incident in this case took place in the co-tenant's own room into which the Applicant had followed him after having been refused a loan, and since the Applicant had pointed a pair of scissors at the co-tenant's neck, the trial judge's adoption of a starting point of 5 1/2 years was appropriate.

4. The Applicant had admitted the offence and had pleaded guilty. To reflect that, the trial judge had given him the usual 1/3 discount. There were no other mitigating circumstances.

5. By reason of the above, there are no grounds for suggesting that the ultimate sentence of 3 years and 8 months (being 2/3 of 5 1/2 years) was wrong in principle or excessive. Accordingly, leave to appeal against sentence is refused.

6. The Applicant should be informed that he is entitled to renew his application for leave to appeal to the Court of Appeal, but the effect of this refusal of leave is that the Court of Appeal would be free to direct, if it considers appropriate, loss of time, in other words, that the time under which he is in custody pending the determination of his appeal be excluded from reckoning as part of the term of sentence to which he is subject.