R. v. NG KA FAI

IN THE COURT OF APPEAL

1996, No.419
(Criminal)

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J U D G M E N T

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Power, Ag. C.J.:

1. The applicant in this matter faced two charges of robbery. He pleaded guilty to those charges before Judge Beeson in the District Court and was sentenced to three years and four months on each. Twelve months of the sentence on the second was, however, ordered to be consecutive to the sentence on the first.

2. The admitted facts indicated that the first robbery, which occurred on 1st May 1996, took place in a lift. A Madam Chan Miu-kwai was in a lift in Hing Shing House, Tai Hing Estate, Tuen Mun, with her two-year-old grand-daughter and the applicant. As the lift ascended to the fifth floor where Madam Chan was to disembark, she found that someone was grabbing her wallet and she was then pushed to the ground by the applicant. She tried to defend herself but the applicant hit her on the head with his umbrella. He then snatched the wallet and fled. Among other things in the wallet was a card from the St. Honore Bakery.

3. Only one day later on 2nd May, a Madam Chiu Shuk-ping was going up in the lift when she found herself grabbed by the arm by the applicant. He tried forcibly to pull her out of the lift on 11th floor. She resisted struggling. She managed to remain inside the lift and the applicant then punched her three times on the head and took her wallet. She immediately raised the alarm, The police came to the scene. She helped to identify the applicant and he was apprehended. He then took the police to the place where he had discarded the wallet and on his person was found the St. Honore Bakery coupon. He admitted that he had committed the earlier robbery.

4. The trial judge when sentencing detailed the circumstances of the offences and then said:

"In mitigation your counsel advises that you are a drug addict, that you found it difficult to live on your earnings and the money you got from your family, and therefore committed these offences to buy drugs. As well as praying in aid your guilty plea to these offences, which I accept as an early plea, your counsel points out that no weapon was used in either of these offences. He indicates that for that reason it is not appropriate to take a starting point of 5 years for these robberies. He also says that in view of the fact that these offences were committed on one day and the next, that a concurrent sentence would be appropriate.

The trial judge went on to say that, although no weapon was involved, the umbrella was used against the 57-year-old grandmother and unnecessary violence was used against the second victim. She felt it appropriate, therefore, to take a starting point of five years for each offence, to reduce that, because of plea, to three years and four months and then, with totality in mind, to order that one year only of the second sentence be consecutive to the three years and four months imposed on the first sentence.

5. The applicant today submits that the sentence was too heavy pointing to the fact that he had pleaded guilty. He does not try to minimize the seriousness of the offences but says that he has now repented and asks that this court be lenient with him. We take into account what he has said but there is nothing which would allow us properly to interfere with the sentences. The starting point was a proper one, an appropriate discount was given and the judge, given that these were separate offences committed on separate dates, rightly made the second sentence partly consecutive to the first.

6. The application must be refused.