HKSAR v. LO CHUNG YIN

CACC 155/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 155 OF 2003

(ON APPEAL FROM DCCC NO. 215 OF 2003)

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J U D G M E N T

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Hon. Cheung J.A. (giving the judgment of the Court):

Appeal against sentence

1. The appellant pleaded guilty to a charge of robbery. He was sentenced to three years and four months' imprisonment. He now appeals against the sentence.

2. The robbery took place on 3 November 2001 in a staircase. No weapon was used, the female victim who was aged 22 struggled with the appellant when he tried to rob her. The appellant pushed the victim which caused her to lose her balance and fall down the staircase. The victim sustained injuries to her head.

3. Deputy District Judge Ma used a starting point of five years' imprisonment which was reduced by one-third because of the guilty plea. The final sentence is three years and four months' imprisonment.

Previous sentence

4. The sentence itself cannot be challenged. The five-year starting point and the one-third reduction of sentence are all in accordance with the established tariff and sentencing principles.

5. The only matter that concerns us is the totality of sentence. On 17 May 2002 the appellant was sentenced to the Training Centre for the offence of going equipped for stealing and other offences. The offence of going equipped for stealing was committed in April 2002. The appellant, who was born on 13 July 1981, was then under 21 years of age.

6. While he was detained in the Training Centre, he was convicted on 16 July 2002 for three offences he committed in August 2001, namely, conspiracy to burglary, going equipped for stealing and possession of false instrument (i.e. a false car licence plate). He pleaded guilty to the offences. By then he was a few days over 21. He was sentenced to a total of twelve months' imprisonment. That means after he had been detained in the Training Centre for two months he began a sentence of twelve months' imprisonment.

7. On 9 January 2003, he was sentenced to three months imprisonment for possession of an offensive weapon which he had committed in December 2001. The sentence was consecutive to the earlier sentence of twelve months imprisonment.

8. The present offence was committed by the appellant in November 2001. He admitted the present offence when he was interviewed by the police on 29 October 2002 while he was in custody. There was no identification by the victim. The appellant's admission of guilt even at the investigation stage obviously is a strong mitigating factor.

Totality of sentence

9. The judge in this case ordered the present sentence to be served consecutively to the earlier ones on the basis that they were different offences and the appellant committed the present offence while he was on bail for the earlier conspiracy offence.

10. Based on the current sentences the appellant would have to serve a total of four years and seven months' imprisonment. Taking into account the two months he had already served in the Training Centre, he would have been in custody for four years and nine months.

11. While the offences for these three sentences were all different, it has to be borne in mind that the present offence was, like the other two for which he was sentenced to imprisonment, committed by him while he was under 21. He pleaded guilty on every occasion to the offences he was charged with. These are strong mitigating factors.

12. From what we can ascertain from the record of the appeal that the appellant lodged against the sentence of twelve months imprisonment, he played a minor role in the crime. He drove another person around in a locality to see if burglary could be committed. The other person was to carry out the burglary and the appellant was to deliver a rucksack containing the equipment for the burglary to the driver of a vehicle who would then deliver it to that person. The appellant was arrested when he entered the car in order to deliver the rucksack. His appeal against sentence was abandoned by him.

13. In view of the non-violent nature of these three offences a Training Centre detention obviously was an appropriate sentence had he been sentenced before he was 21.

14. On the other hand robbery is a serious crime. It would be unrealistic for the appellant to expect a sentence other than imprisonment being imposed.

Sentence reduced

15. However, had he been sentenced at the same time for all these offences, we do not consider that a total of four years and seven months' imprisonment should be imposed. Looking at this from another angle, this would represent a sentence of about seven years before the discount for the guilty plea. This would be the maximum sentence allowed under the District Court Ordinance. The sentence obviously is excessive.

16. The principle is clearly that the sentencing court must have regard to the totality of all the sentences that the defendant will be subject to, including those to which he has been recently sentenced (R. v. Tong Hoi Fung [1988] 1 HKLR 611, R. v. Ng Chun Keung [1993] 2 HKC 171 and HKSAR v. Chan Ho Yin (CACC 257/2000). The fact that the present offence was committed while the appellant was on bail for the earlier conspiracy offence would not affect the application of this principle.

17. We are of the view that the appropriate total sentence before the discount for all these offences should be five years and nine months. After the one-third discount it should be three years and ten months' imprisonment. To achieve this, we will not disturb the sentence of three years and four months' imprisonment but will order nine months of it to be served concurrently with the earlier sentences of twelve months' imprisonment and three months' imprisonment respectively.

18. In other words two years and seven months of the present sentence will be served consecutively to the earlier ones.

19. The appeal is accordingly allowed as indicated.