HKSAR v. CHEUNG WA and Another

IN THE COURT OF APPEAL

1997, No. 48
(Criminal)

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J U D G M E N T

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1. On 6 January 1997 these two applicants pleaded guilty to an offence of robbery in front of Deputy Judge Beeson. Each was sentenced to 7 1/2 years imprisonment. Each now applies for leave to appeal against his sentence and each is represented by Mr Loughran.

The facts

2. These applicants came to Hong Kong illegally. They contended that they had come to seek work but within a day of arriving, they committed this offence with three others. That gang - wearing gloves and some armed with choppers and carrying nylon string for the purpose of tying up victims - went into a family village house. That was a house occupied by Mr Yau, his wife, his 9-year-old son, his 3-year-old daughter and his 78-year-old mother, who was sitting in the door way of that house. The rest of the family were watching television when these ruffians grabbed the mother by the neck and forced her into the house. Once inside, they were all grabbed, including the children. When the 9-year-old son said in answer to a demand for money that there was no money there, he had his face slapped and was punched in the stomach twice for his trouble.

3. It appears that Mr Yau's wife was held by D1 with a chopper to her neck as a consequence of which she received a cut to her cheek. It was D2 who held the elderly lady and also at some stage he was said to have nearly suffocated the 3-year-old child when covering that child's mouth with his hands.

4. The gang spent 20 minutes ransacking the house. Money, jewelry, clothing and bank-cards were taken. All the victims were left tied up and locked in a bedroom. Both accused were arrested within about a day after identity checks. They each admitted that they had come into Hong Kong immediately before the offence.

The Court hearings

5. Two of the gang had been sentenced at an earlier hearing in front of Yeung J. Those two had pleaded guilty at a very early stage at the Magistrates Court. That judge took as his starting point 8 years and for one of them - the only one relevant to this case - he had allowed a reduction for the plea from 8 years to 5. This was generous having regard to the early plea.

6. In this case, the judge took as her starting point 9 years and then reduced the sentence to 7 1/2 years, giving only a small reduction for the pleas of guilty. This was on the basis that those pleas were made very late. She was of the impression that the pleas were made immediately before trial when the prosecution had arrived at court ready to present its case with all the witnesses present.

The Application

7. We can deal with this case briefly. It is submitted that the trial judge erred in principle in failing to give sufficient discount for pleas of guilty. It is well recognised and laid down by this Court, that a judge should normally give about 30% discount where there has been a timely plea. If the discount is radically departed from, a judge should normally give reasons. No doubt that was why the judge gave the late plea as the reason for the minimal discount.

8. We turn to consider the sentence and the discount. The judge was aware that at the earlier hearing, 8 years had been taken as the starting point by Yeung J. Of course, the sentencing judge always must exercise his or her independent discretion when fixing sentence. Also, however, if an earlier judge has chosen a sentence which is correct, and within the proper range, that must be of some influence. Normally accused persons involved in the same case will appear before the same judge at the same time but that cannot always be achieved. That being said, it cannot be said - and it has not been said by Mr Loughran - that the judge's starting point of 9 years was manifestly excessive or wrong in principle. Unquestionably, however, it was at the top of the range and justifiably for a very serious offence.

9. Having said that, Mr Loughran brings to this Court's notice that the pleas made by these two applicants were not made as late as the judge thought. One of the applicants, indeed, indicated through his advisers, as early as 13 November 1996 that a plea would be tendered. Both applicants indicated on 25 November 1996 - some 6 or more weeks before trial at the pre-trial review - that they would tender pleas. So, for reasons which are not immediately apparent, the judge was unaware of that important fact. Suffice it to say that in those circumstances the discount that she gave was wrong in principle. No doubt, had she known the circumstances, she would have faithfully followed the policy of the court and the guidelines and would have given a more substantial discount.

10. In the circumstances we think that justice will be done if we treat this application as the appeal, allowing the appeal, discount the sentence of 9 years by one-third so as to reduce the sentence to 6 years imprisonment. To that extent the appeal is allowed.