HKSAR v. YAN MING

CACC613/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 613 OF 1998

(ON APPEAL FROM DCCC 1109 OF 1998)

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 23rd November 1998, the Applicant pleaded guilty before Judge Hawkes in the District Court to charges of attempted robbery, robbery and remaining in Hong Kong without authority for which, respectively, he received sentences of fifteen months, three years and four months to run concurrently, and fifteen months to run consecutively, making a total of four years and seven months' imprisonment. The Applicant now seeks leave to appeal against the sentence.

2. In his grounds of appeal, he makes a number of points, in particular that no injury was caused to his victims; and that he was in any event forced to steal because of his dire straits. He said also that he admitted the offences early on and would like to reform and be reunited with his family as soon as possible.

3. The judge clearly took a merciful course by making the sentences on the first two charges wholly concurrent. The sentence for the immigration offence should, in normal circumstances, be made consecutive so that no valid criticism can be made of that order.

4. Nevertheless, the judge does appear to have fallen into error when giving his Reasons for Sentence. We are grateful to Miss Wong, for the Respondent, for drawing to our attention a matter which had, in any event, concerned us. The judge took a four-year starting point for the offence of robbery in the second charge. He expressed himself as reducing the sentence to three years and four months to take in the plea of guilty. On any view, this should have been two years and eight months to provide a proper discount for the plea. In fact, we consider it is possible that the judge may have had in mind that the starting point for the offences in charges 1 and 2 should have been five years taken together, so that he was reducing by one-third from that starting point. However, if that was what was in the judge's mind, it was not spelt out in the Reasons for Sentence and, accordingly, this Applicant will be the beneficiary of the error.

5. Accordingly, we give leave in this case and, treating the hearing as the appeal, we will reduce the sentence on charge 2 to two years and eight months. The other sentences are unaltered which has the effect that fifteen months' imprisonment on charge 3 will continue to be consecutively served, making three years and eleven months in all. To this extent the appeal is successful.