R. v. CHEUNG HOI PONG

IN THE COURT OF APPEAL

1995, No. 133

(Criminal)

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J U D G M E N T

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Mayo, J.A., giving the judgment of the Court:

1. The applicants in these appeals which relate to the same incident all seek leave to appeal against the sentences of imprisonment imposed upon them.

2. All three men were sentenced to 8 years' imprisonment on the robbery counts, four years' imprisonment on the Section 17(a) assault charges and 6 months' imprisonment on the s39 assault charge. The first two sentences were consecutive the second two sentences were ordered to be concurrent with each other and with the first two sentences.

3. The 3 applicants, wearing stockings over their heads and armed with bread knives entered a shop in Wanchai trading under the name or style of 'Ricky Tattoo' at 2 am in the morning of 16 August 1994. The proprietor of the shop and two employees were there. They were tied up and blindfolded and the premises were ransacked.

4. Perhaps one of the most disturbing features of this case was the subject of the assaults. It is part of the admitted facts that the applicants inflicted the wounds which were sustained by the victims because of their refusal to divulge the PIN numbers of the Bank cards and credit cards which had been stolen by the applicants. In other words the wounds were inflicted by the applicants with the knives quite deliberately and for the purpose of extracting this information.

5. The applicants were apprehended by the police at the conclusion of the robbery. The total value of the proceeds of the robbery was of the order of HK$41,000.

6. All of the applicants pleaded guilty to the offences at an early stage.

7. A1 and A2 are brothers. They come from a large family. A1 was aged 17 at the time of the offence and A2 was aged 19. In the plea of mitigation which was before Saied J one of the main factors relied upon was the poverty of the family and the claim that the motive for the robbery was an attempt to relieve the financial embarrassment of the family.

8. So far as A3 is concerned he admitted to being the prime mover. He was about the same age as A2. It was said that at the time of the offence he had been addicted to heroin and that he required $100 per day to feed his addiction.

9. Saied J. adopted 12 years' imprisonment as the starting point on the robbery and giving the applicants one third credit for their pleas passed sentences of eight years on each man. He considered five years to be a suitable starting point for the s17(a) assaults and six months for the s39 assault. He was minded to make the assault charges consecutive to the robbery charges but considered that if he were to make all the sentences consecutive the totality of the sentence would be 16 ½ years which he regarded as being excessive. He did not see justification for making a distinction between the sentences imposed on these men.

10. We consider that total sentences of 12 years' imprisonment are excessive.

11. The robbery and the woundings by the use of knives taken together would have justified a starting point of 12 years. The starting point taken by the judge appears to have been 17 years.

12. We consider that a distinction has to be made between sentences imposed on A3 and on the other two applicants as he was the ring leader and he should receive a longer sentence than the other men. Giving an appropriate discount for the guilty pleas we order that A1 and A2 should receive 8 years' imprisonment on the robbery charge and that A3 Mr Cheung should receive 9 years. For the reasons we have given we would order that the sentences imposed on the other charges should run concurrently with the sentence.

13. The application for leave is granted and treating the applications as the substantive hearing the sentences imposed will be adopted as stated.