CHENG CHEUK-MAN v. R.

IN THE COURT OF APPEAL

1994, No.229
(Criminal)

HEADNOTE

Criminal Law - Sentencing - Judge imposed maximum sentence with no discount for "guilty plea" - Deviation from general principle that court should give discount justified in this case - Dicta in Rogers [1992] 13 Cr. App. R. (S) 80 and The Queen v. R Times L.R. (16 Jan. 1992) followed.

IN THE COURT OF APPEAL

1994, No.229
(Criminal)

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J U D G M E N T

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Litton, J.A. (giving the judgment of the Court):

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

2. The applicant was convicted in the District Court before His Honour Judge Lugar-Mawson on one charge of common assault and sentenced to twelve months' imprisonment. This is the maximum sentence allowed by statute for that offence: s.40 of the Offences Against the Persons Ordinance.

3. The applicant was originally charged with robbery in that on 28th May 1992, at a staircase landing in Battery Street, Kowloon, he, together with two others, robbed one Cheng Wai-yin of $157.928 taels of gold.

4. The applicant was arrested by the police in May 1993, about a year after the crime. On being questioned he admitted to the police that he took part in the assault on the victim Cheng but denied taking part in the robbery. At his trial he gave evidence to the same effect. He said that whilst he was in prison he met a man named Lau, one of the two persons named in the charge, and later agreed to assist Lau in recovering money from the victim. That, he said, was how it came about that he took part in the assault.

5. No discount could have been given to the applicant for his record as he had previous convictions for serious criminal offences. The only question was whether the judge should have given the applicant a discount for the fact that he admitted taking part in the assault all along.

The judge's approach was this:

(1) The attack on the victim was vicious and premeditated and committed in a most cowardly fashion by three men. In it the victim suffered quite severe injuries.

(2) Although the applicant had admitted taking part in the attack all along, the assault was so serious that had he been charged with the alternative of assault occasioning actual bodily harm, he would undoubtedly have been found guilty, and that would have merited two years' imprisonment.

It is the case for the applicant in this court that the judge erred in basing his sentence of imprisonment upon "a term which the judge would have imposed" for the offence of assault occasioning actual bodily harm, but for which he was not actually charged. In our view the judge did not err in his approach. What he did was simply to have looked at the spectrum of criminality upon the facts before him and he came to the view quite rightly that this was an attack which was vicious, premeditated and one which resulted in severe injuries; it therefore attracted a severe sentence.

A sentencing court must obviously have regard to all the facts of the case before it in imposing sentence. Within an offence such as common assault, there is of course a considerable spectrum of criminality. There can be no doubt that on the facts of this case it fell within the top end of the range. That is the view the judge took; correctly so.

The question then before us is whether the judge erred in not giving any discount for his guilty plea. Of course, the applicant was charged not with common assault but with robbery: what counsel meant by "guilty plea" was the acceptance by the applicant of the fact that he took part in the assault all along. The judge in sentencing him to the maximum permitted by law said this:

"I took the view that the circumstances of the commission of the offence and the injuries suffered by Cheng were so serious that this was one of those rare cases where the normal sentencing principle that an admission of guilt attracts a discount in sentence did not apply."

There is no doubt that the public interest generally dictates that in most cases a sentencing court should give a discount, perhaps a generous discount, for a guilty plea, particularly in cases like rape where the trauma of giving evidence in court by a complainant would be considerable. But as the judge rightly remarked, there are rare cases where there can be deviation from that principle. In this regard, two cases have been referred to us by Mr. Cross, Q.C.: the case of Rogers [1992] 13 Cr. App. Rep.(s) 80 and The Queen v. R Times Law Reports 16th January 1992, which both emphasized that there are exceptions to that principle. The judge plainly had in mind that principle in imposing the sentence he did. We are not persuaded that he erred in any way in the approach he adopted. Accordingly this application for leave must be refused.