R. v. LI CHI-LUNG

IN THE COURT OF APPEAL

1995, No. 363

(Criminal)

________________

J U D G M E N T

________________

Mortimer JA (giving the judgment of the Court): This applicant pleaded guilty to an offence of possessing an offensive weapon in the public place before His Honour Judge Sweeney on 3rd April 1995. He appeared in front of the District Court because this offence appeared on the indictment with another offence for which he was acquitted. For this offence the judge sentenced him to 18 months imprisonment, having taken two years as the starting point and deducting 25% for his plea of guilty. He applies for leave to appeal against sentence.

The facts

2. At the time of the offence he was just short of 18 years old and was already the subject of a training centre order which had been made on 14th September 1994 for burglary and attempted burglary. At the time of this offence, he was on bail. He has a poor record, previously having been on probation for robbery and common assault.

3. The judge had before him a number of reports which he took into account. His hands were tied by s.33(2)(c) of the Public Order Ordinance, Cap.245. A sentence of imprisonment is mandatory for this offence.

4. Turning to the facts of the matter. They are very simple. The applicant was in the street with a co-accused and he was armed with a 1-foot long beef-knife which, he says, was to be used to attack a triad member in order to pay off some past score.

5. The prosecution's version was that he and the other accused were waiting for a person who was delivering the proceeds of a restaurant to the bank in order to rob. Whichever it was is irrelevant for he is to be sentenced for the offence to which he pleaded guilty. That of having an offensive weapon in a public place.

The sentence

6. The judge took 2 years as his starting point and reduced it to 18 months. In considering the sentence we have a number of things in mind. The first is that the applicant is subject to a training centre order, and received a sentence of less than 2 years imprisonment which results in the training centre order being suspended during the time of his sentence of imprisonment. That necessarily involves some consideration of the totality of the sentence imposed. So far as the plea of guilt is concerned, the judge took 25% discount. The applicant submits that it was low. Although this is a matter for the judge's discretion, 25% is lower than is usually given.

7. The further matter is that the training centre order is designed to assist in the reformation of those who undergo it. A long interruption of that process is unlikely to be beneficial even though the reports before us on this applicant are not very encouraging. He is variously described as having not shown any remorse, and a youngster with a strong criminal disposition and a deep devotion to triad subculture. Nevertheless there are passages in the reports which are somewhat more optimistic and it is to be hoped when he eventually returns to the training centre that he will benefit from the period he spends there.

8. Bearing all those matters in mind, we have concluded that the sentence of 18 months is too high. In the circumstances we give leave to appeal against the sentence, we treat this hearing as the appeal and reduce the sentence to one of 12 months imprisonment.