THE QUEEN v. YUEN CHI KEUNG and Another

IN THE COURT OF APPEAL

1995, No.521
(Criminal)

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J U D G M E N T

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Bokhary JA:

1. This is an application for leave to appeal against sentence.

2. It comes to us from the District Court. There this applicant was one of two young men who appeared before Deputy Judge D'Almada Remedios. They appeared before His Honour on a charge sheet under which they were jointly charged with one robbery and each charged with remaining in Hong Kong without authority having landed unlawfully.

3. At the outset, both pleaded guilty to remaining but not guilty to the robbery. However, at the close of the prosecution's case but before the judge ruled on the admissibility of confession statements which the prosecution sought to produce against them, both changed their pleas on the robbery charge from not guilty to guilty.

4. Passing sentence on July 13 last year, the judge sentenced both men to six years and three months' imprisonment. That sentence was arrived at by consecutive terms of five years for the robbery and 15 months for remaining.

5. Both men lodged Notices of Application for Leave to Appeal against Sentence. But the other man has since abandoned his application, leaving only this applicant.

6. There was nothing out of the ordinary about the remaining.

7. As far as the robbery is concerned, the judge described it thus in his Reasons for Sentence:

" The two defendants entered domestic premises at night time in the New Territories through an unsecured door. Whilst inside, they overpowered an old gentleman who was there alone. They put knives at his neck, bound and gagged him. In the course of the robbery, they took some jewellery items and a few thousand dollars cash, and rummaged through the premises.

In mitigation, their family background was put forward and it was said that they did not prearrange the robbery. I do not accept that as they had their strings, torch and knives. It was said they were hungry and looked for food. This did not seem to be consistent with their actions upon entry."

8. The judge took a starting point of seven years for the robbery.

9. Taking into account the mitigation available to each man, principally his guilty pleas, the judge discounted the seven years to five years.

10. For the remaining, the "guidelines" term of 15 months, as this Court said in R. v. So Kam Ming [1989] 1 HKLR 142 at p. 145, "already allows for the almost invariable plea of guilty".

11. In his Notice of Application, the applicant has inserted these grounds:

"1. I should enjoy leniency for my guilty plea. The judge should attach importance to my co-operation and slow mercy.

2. I come from China. My education is limited. I know nothing about Hong Kong laws. In the case, the Crown seriously hurt me.

3. My lawyer did not do his job of defending me.

4. Given similar cases, my term is excessive. This is unfair to me. I sincerely ask the judge to give me a chance to turn over a new leaf."

12. Some of those things are totally off the point, and bear no relationship to reality. There was, for example, no question of defending him since he pleaded guilty.

13. In the course of his oral submissions, the applicant expanded upon the difficulty of his family circumstances, which includes the serious illness of his mother. He developed his point that he was only after food, being cold and hungry. He contended that the starting point for the robbery was too heavy. He suggested that the reduction for his guilty pleas should have been greater and as much as one-third. And he argued that the two sentences should not have been wholly consecutive.

14. The questions which arise appear to be these. Was the starting point of seven years for this robbery appropriate? What about the discount of two years therefrom: was it appropriate? Were consecutive sentences right in principle? Finally, was the total sentence of six years and three months appropriate?

15. In our judgment, the answer to each of those questions is "yes". The only thing that gave us pause was whether the consecutive sentences produced an excessive total.

16. When sentences are made consecutive, it is always necessary to stand back and look at the total to see that is not excessive.

17. Here, only two terms went into making up the total sentence. And all things considered, we are of the view that the six years and three months which resulted from the two terms being made consecutive without either of them being scaled down was, in the result, still within the range of appropriate punishment for the present case.

18. In those circumstances, the application for leave to appeal against sentence is dismissed.