HKSAR v. LI YAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 84
( Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. This is an application for leave to appeal against a total sentence of 7 years imposed upon the applicant by Deputy Judge Wright in the District Court for two offences of robbery and one offence of remaining in Hong Kong without authority.

The sentences

2. For the two offences of robbery the judge selected 9 years as his starting point. He considered that the appropriate sentences were 5 years for the first robbery and 6 years for the second, but taking into account totality he reduced the 11 years to 9 years. He then gave a 1/3 discount for the plea of guilty and reduced the total to 6 years. On the principle that the sentence for being an illegal immigrant should normally be 15 months consecutive to any other sentence imposed, the judge added 1 year to the 6 years and passed a sentence of 7 years' imprisonment. The limit of his jurisdiction.

The applicant's submissions

3. Mr. Whitehouse, who appears for the applicant, submits that this sentence is:

(a) wrong in principle because it allowed the applicant no benefit for his plea of guilty (the judge could not have passed a longer sentence after trial); and

(b) the sentence was manifestly excessive because the judge's starting point was too high.

4. Further, he submits that in order to give effect to the established sentencing policy of giving a one-third discount for an early plea of guilty in normal circumstances the judge ought to have given a one-third discount from 7 years - the maximum sentence which the judge had the power to impose.

Previous decisions of this Court

5. The approach to sentencing in these circumstances in the District Court has been considered previously in R. v. Mo Kwong Sang [1981] HKLR 610; R. v. Ho Sik Yin CA 126/91 (unreported); R. v. Kwok Chi Kwan [1990] 1 HKLR 293; and, HKSAR v. To Yuk Sum [1997] CA 247 (unreported). The principles which are to be elicited from these cases and the jurisdictional limit laid down in Section 82 of the District Court Ordinance, Cap. 336 are as follows:

(1) On any one occasion the District Court may not impose a greater sentence than 7 years' imprisonment.

(2) Such a sentence may be consecutive to a sentence passed previously which is being served by the accused.

(3) In order to assess the correct sentence, it is permissible for the judge to adopt as a starting point, a total sentence of more than 7 years if the offence or offences warrant such a sentence, but he may not impose a sentence of more than 7 years.

(4) If the sentences are imposed after plea, the starting point may be more than 7 years, but if the sentence after discount is 7 years or more, the full 7 years should not be imposed as this deprives the accused of any benefit for his plea of guilty.

(5) Therefore, in cases which merit a sentence of 7 years or more after discount for plea, a further discount should be given. In R. v. Kwok Chi Kwan (above), a sentence of 6 1/2 years was imposed.

6. But R. v. Kwok Chi Kwan was decided before the now standard 1/3 discount for plea and sentencing policy must now be looked at in the light of that approach.

The issues

7. The first question for this court is whether in those cases where an appropriate sentence after discount is 7 years or more, policy and justice require a further 1/3 discount from the 7 years maximum, or whether, some lesser discount is appropriate. The second issue is whether the sentence imposed by the judge was either manifestly excessive or wrong in principle.

The 1st issue

8. The cases cited above demonstrate - and it is self-evident - that justice requires a further meaningful discount should be given from the maximum of 7 years after plea in those cases which would attract 7 years or more as the proper sentence which the court ought to impose. This is to give the accused some benefit for his plea of guilty.

9. But, neither policy nor justice require that a 1/3 discount for a plea should be given from the maximum of 7 years regardless of the proper starting point. In cases where the appropriate sentence to be imposed after discount is 7 years or more, a meaningful discount from 7 years should be given in order to give some benefit for the plea. The same applies if the appropriate sentence is so near 7 years that the discount is not meaningful. As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than 1 year be so considered.

The 2nd issue

10. In the present case the totality of 9 years adopted by the judge as the proper starting point after trial for the robbery offences was manifestly excessive. Having particular regard to the proximity of the two offences, a totality of 7 years would have been appropriate. After discount of 1/3 for the plea, the proper sentence for the robbery offences would have been 4 years 8 months.

11. For the immigration offence the guideline is 15 months' imprisonment consecutive after plea. This results in a sentence of 5 years and 11 months. This sentence involves a meaningful discount from the 7 years maximum.

Conclusion

12. For these reasons we grant leave to appeal against sentence, treat this application as the appeal and reduce the sentence of 7 years to one of 5 years 11 months.