HKSAR v. LAW WAI KEUNG

CACC 525/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 525 OF 1998

(ON APPEAL FROM DCCC 553/1998)

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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 applicant who was D4 in the trial below in the District Court before Judge Wilson at a late stage pleaded guilty to being in possession of offensive weapons in a public place, contrary to s.33 (1) of the Public Order Ordinance, Cap. 245. He was sentenced to 3 years imprisonment and seeks leave to appeal against the sentence.

2. The applicant and his three companions were in a car in Tsuen Wan when a police officer noticed that the front registration number plate of the car appeared to have another number plate affixed over it. The officer stopped his motor cycle in front of the car and approached the driver who was the applicant. The other three men in the car disembarked in haste and ran away. They were pursued by other police officers in the vicinity and apprehended and brought back to the scene. The car was searched and found to contain five large knives. In a cautioned statement the applicant admitted knowledge of the knives and also knowledge of hoods and gloves found in the car and the false number plate. He was also aware of a planned revenge attack on someone who had offended a member of the group.

3. The Judge took the view that this was a case which would justify the imposition of the maximum sentence under the section of 3 years imprisonment.

4. It was certainly a very bad case. Indeed in this connection, as was pointed out by the Judge, the applicant could easily have been charged with a much more serious offence. In addition to this the applicant has a poor criminal record including convictions for robbery, burglary and dangerous drugs and the probation report which was obtained was unfavourable.

5. The applicant changed his plea after the Judge ruled his cautioned statement to be admissible evidence. The Judge was not prepared to give any discount for the plea in these circumstances.

6. Mr. Kenneth Chan for the applicant contended that the maximum sentence under the section was not justified in the circumstances and that some discount should have been given for the plea.

7. While we consider that the imposition of the maximum sentence was justified we do consider that the Judge erred in declining to give any discount for the change of plea. There must be some incentive to defendants to plead guilty. This is in conformity with the reasoning in the R. v. Chan Chi-sing [1995] 3 HKC 325. Certainly in this case it should be much less than the usual 1/3 discount for an early plea. In our view a discount of 3 months would have been appropriate.

8. We allow the application and treat it as the appeal. We reduce the sentence by 3 months thus leaving a sentence of 2 years 9 months imprisonment. To this extent the appeal is allowed.