HKSAR v. LEE MAN KI

CACC 66/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 66 OF 2000

(ON APPEAL FROM DCCC NO. 430 OF 1998)

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J U D G M E N T

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Wong JA:

1. The applicant pleaded guilty before Judge Wilson in the District Court to two charges of robbery. On the first charge, he was sentenced to one and a half years' imprisonment and on the second charge the judge imposed a sentence of 3 years' imprisonment to be served consecutively making a total sentence of four and a half years. He now seeks leave to appeal against sentence out of time.

2. The facts are simple and straightforward. On 8 September 1996, the applicant snatched from a woman inside a lift one gold necklace and two gold bracelets. The woman was carrying a child. On 24 October 1996, he again snatched from another woman, also inside a lift, a gold bracelet, a gold finger-ring and $600 in cash. The woman was carrying a baby and on this occasion a knife was displayed.

3. In passing sentence, the judge made these remarks :

"The defendant is 42 years old and has 10 previous court appearances, seven of which resulted in convictions for robbery and one for possession of an offensive weapon. In mitigation it is urged that he has a wife and two children and that his brother died prematurely recently. These are separate offences committed more than a month apart and I am of the view that the sentences must be consecutive. I will take into account the totality principle in assessing the sentences and I will give the defendant a discount for his pleas of guilty. I select starting points of 2 years on charge 1 and 4 years on charge 2, respectively. I discount each of these figures on account of the pleas of guilty. In the result, the defendant is sentenced on charge 1 to 1 1/2 years' imprisonment; on charge 2 to 3 years' imprisonment consecutive to that, making in effect a total of 4 1/2 years' imprisonment."

4. The only complaint that the applicant has made is that he had not been giving a full discount of one third of the sentence for his guilty plea and as a result he received 6 months more than he should otherwise have. Mathematically, he is quite correct. It is also correct that a discount of one third would normally be given for early pleas of guilty. There are, however, circumstances that may warrant a discount of less than one third, such as a late plea or that the accused had absconded from bail during trial. But this case is not one of them. The judge has not given any reason as to why he did this.

5. The applicant had pleaded guilty at the very outset of the trial and there were no circumstances that he should not be accorded a full discount. In our view, the judge was wrong. In the result, the sentence of 18 months on the first charge is reduced by 2 months to 16 months and the sentence of 3 years on the second charge is reduced by four months to 2 years and 8 months. The sentences are to be served consecutively making a total sentence of 4 years.

6. Accordingly we grant the application for leave to appeal against sentence out of time and treating the hearing as the hearing of the appeal, we allow the appeal to the extent indicated.