R. v. CHEUNG KWOK YIU

IN THE COURT OF APPEAL

1997, No. 43

(Criminal)

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J U D G M E N T

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Bokhary JA:

1. This is an application for leave to appeal against sentence. It comes to us from the District Court where the applicant, a man aged 21 at the time, appeared before His Honour Judge Davies on one charge of attempted robbery. He pleaded guilty; and sentencing was postponed for probation, detention centre and training centre reports.

2. Sentencing took place on January 15 this year.

3. The Commissioner of Correctional Services considered the applicant unsuitable for detention in a Detention Centre or a Training Centre. As to Detention Centre, trouble which he has with his spine and left heel render the applicant unfit for the physically demanding regime at such an institution. As to Training Centre, he has a long history of depression, was experiencing major difficulties in adjusting to a penal setting and has a low stress tolerance. So, from a psychological point of view, it was felt that he would not be able to cope with the programme in a Training Centre.

4. In any event, the judge said that he did not think that detention in a Detention Centre or a Training Centre would adequately reflect the applicant's criminality.

5. What was that criminality? This is how the judge, addressing the applicant, summarised what he had done:

"In the present case, you instructed the taxi driver to take you to Yuen Long from Central Hong Kong. By the time the taxi reached Yuen Long, the taxi meter showed a fare of HK$330. You hit the taxi driver on the head with the wine bottle from which you had been drinking during the course of the journey and you shouted, "Freeze, otherwise I will burn you," whatever that was intended to mean.

You then moved to the front of the taxi and began a search, no doubt for money, because you kept saying the word, "Robbery." You continued to assault the taxi driver who, understandably, had become angry and had started to fight back. Fortunately, he managed to call the police over his portable phone and he was also, ultimately, able to subdue you and restrain you until the police arrived to arrest you. I am informed the taxi driver, during this incident, sustained a cut to his hand which required five stitches."

6. The judge took a starting point of seven years. For his guilty plea, the judge gave the applicant a discount of approximately 20%, namely one of 17 months. The judge did not give a one-third discount because the applicant had been, as he put it, caught "red-handed". In the light of the applicant's youth and the fact that he had not been in trouble with the law before save for two minor offences, the judge gave him a further 12 months' discount.

7. As a matter of simple arithmetic that would result in a sentence of four years and seven months.

8. But the judge imposed a sentence two months longer than that, sending the applicant to prison for four years and nine months.

9. There is no doubt that this application must succeed at least to the extent of two months. The question is whether it succeeds to any further extent.

10. It can be said that the discount for the guilty plea should have been the full one-third discount. After all, accused persons should not be given encouragement to fight the unfightable.

11. On the other hand, the discount which the judge gave for the applicant's youth and his record need not in the circumstances have been given at all. In fact, if you look at the total discount which the judge gave - or at least intended to give but for an arithmetical error - the applicant has done very well out of the sentencing process.

12. All things considered, we are of the view that this application can only succeed to the extent of two months for the reasons indicated. Treating the hearing of this application as the hearing of the appeal itself, we allow the appeal by reducing the sentence by two months from four years and nine months' imprisonment to four years and seven months' imprisonment.