LI KAM FU v. R.

1992, No.392
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Liu, J., delivering the judgment of the Court

1. The appellant has elected to abandon his application for leave to appeal against conviction out of time. Through his counsel, he maintains his application for leave to appeal against sentence.

2. This is a lift robbery case in December 1991, where a young housewife and her infant daughter were confronted by the applicant who produced no offensive weapon but intimidated the victim for her gold necklace with a jade pendant. The victim did not submit voluntarily. After some form of violence on the victim, the jade pendant was snatched from her with words of intimidation and on her way out of the lift, the gold necklace was also snatched away from her, accompanied by further words of intimidation.

3. The victim did not report the matter to the police. Two or three days after the incident, the applicant was noticed by the victim in a shopping place. He was identified by the victim and subsequently caused to be detained and arrested. The applicant was released on police bail. Upon his return to police station, he made a full confession to the lift robbery.

4. Authorities have been cited to us by counsel for the applicant to illustrate the starting point at 4 years for a lift robbery without any offensive or lethal weapon. We are prepared to adhere to the usual starting point. The application of a starting point at 5 years by the trial judge would, therefore, appear to be inappropriate. It calls for our reassessment.

5. The applicant used little force; he pleaded guilty; he is a first offender and he carried no offensive weapon in the incident. We also place some importance on his full confession made to the police during his bail. That reflects, in our view, a strong sense of remorse. Bearing in mind his plea of guilty, his clear record, the absence of any offensive weapon, the negligible physical violence, and his strong sense of remorse, with a starting point at 4 years for this type of robbery, we are quite prepared to give him an appropriate discount. His sentence, therefore, ought to be brought down to 2 years and 9 months from that of 3 1/2 years imposed upon him by the trial judge.

6. For all these reasons, his application is therefore granted. His appeal against sentence is allowed. The order of the trial judge is interfered to the extent that the sentence imposed be reduced from 3 1/2 years to 2 years and 9 months.