R. v. WONG KAM-FOON

IN THE COURT OF APPEAL

1991 No. 295
(Criminal)

HEADNOTE

Robbery - no weapon - minimal force - appropriate sentence.

IN THE COURT OF APPEAL

1991 No. 295
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. This applicant, having been given leave to withdraw his application for leave to appeal against conviction out of time, was represented today on his application to appeal against sentence out of time by Mr. Percy. He had been sentenced to five years by Judge Wesley Wong in the District Court on a charge of robbery having pleaded guilty thereto. We granted his application to appeal out of time.

3. The judge when sentencing recited the facts which were that on 30th September 1990 the applicant entered a lift together with an old lady and the victim, who was a female aged 46. While the lift was ascending, he declared robbery and tried to grab the victim's neck in order to snatch her necklace. She pushed off his hands and he then punched her face and got hold of the necklace. At the 6t floor when the lift stopped, the victim was able to cry out for help, two men came to her assistance and the applicant was apprehended. He continued, however, to display a degree of determined resistance as he told the persons apprehending him "when I come out, I must find all of you".

The judge in his reason said:

"Apart from the fact that he pleaded guilty there is nothing which I can consider as mitigating factors. Even then the plea is inevitable in that he was caught red handed.

For robbery with violence I take 6 years imprisonment as the starting point. I have to give him some credit for pleading guilty because he has thereby saved the Court's time and had dispensed with the witnesses having to give evidence.

In the circumstance, I am of the view that 5 years imprisonment is the appropriate sentence."

Mr. Percy has argued only one ground and that is that six years was not the appropriate starting point for an offence of this kind. He submitted that six years would have been appropriate if the offence had been one of robbery involving knives or dangerous weapons and the invasion of private premises. He referred us to the case of The Attorney General v. Shek Sui-tai [1989] 1 H.K.L.R. 178 which was also a lift robbery in which the respondent followed a lady into a lift and as the lift went up, grabbed by her the neck with both hands and pushed her onto the floor. He tore her gold necklace and jade pendant from her neck but his attempt to remove her gold and jade finger ring was not successful. In imposing sentence, the trial judge in that case said he took into account the plea of guilty. His sentence was one of one year and the Attorney General applied to review that sentence. The Chief Justice, when dealing with it, said:

"We are of the view that in a case such as the present one, an appropriate sentence after trial should be four years."

We are given considerable assistance by this authority. We are satisfied that, where there is no weapon and where minimal violence which is no more than part and parcel of the robbery itself is used, as was so, the case in Shek Sui-tai and in the present offence, the proper starting point is one of four years. In the present case, the applicant, having been caught red handed, was entitled to a minimum discount for his plea of guilty. We fix that discount at six months. We allow the application, treat the hearing of the application as the hearing of the appeal and order that the sentence of five years be varied to one of three years and six months.