R. v. LI CHUN KIT

IN THE COURT OF APPEAL

1995, No. 723
(Criminal)

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J U D G M E N T

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

1. The applicant was convicted on his own plea of two offences. The first was for possession of an offensive weapon in a public place contrary to section 33(1) of the Public Order Ordinance, Cap.245, in that on 3rd January, 1995, at Shu Kuk Street outside the middle block of North Point Estate he had with him a knife. The second was for conspiracy to rob contrary to sections 10(1) and 10(2) of the Theft Ordinance, Cap.210, in that at the same time and place he conspired with another, the 1st Defendant, to commit robbery. He was sentenced to a term of imprisonment of 4 months on the first conviction and to a term of 4 years on the second. The sentences were ordered to run consecutively. He now seeks leave to appeal against his sentences.

2. On the day in question a police patrol had observed the applicant and the 1st Defendant walking around the North Point area at just after 3 o'clock in the morning. At one stage the 1st Defendant entered a female toilet while the applicant waited outside. They were stopped by the police and searched. Each of them had a knife. That of the applicant was 32 cm long. It was wrapped in newspaper and was tucked under his left front waistband. Subsequently, the applicant admitted that he and the 1st Defendant had earlier in the day retrieved the knives from where they had been hidden in the canopy of a building with a view to finding targets to rob. The applicant was, at the date of his conviction, 20 years old having been born on 16th June, 1975. The 1st Defendant was 16. The applicant has two previous convictions. The first was for common assault in December of 1990 when he was put on probation for 12 months. The second was for possession of dangerous drugs in February of 1995 when he was again put on probation for 12 months.

3. In passing his sentences the Judge stated that the offences were very serious. Indeed they were. These two young men had obtained knives which they had secreted in advance. In the early hours of the morning they retrieved them and set out upon an expedition for the purposes of finding victims to rob. No other explanation has been given for their activities and, in particular, for the visit to the female toilet in which it is an irresistible inference that the applicant was acting as lookout. The Judge held that an immediate custodial sentence was called for and there is no complaint as to that. The complaint is to the length of the sentences. Counsel referred to R. v. MO Kwong Sang which was a case decided in 1981 and which laid down a guideline of a starting point of 5 years where a knife was not displayed to the victim during a robbery. Clearly however the applicant was with another person, they intended to use the knives and they were looking for victims.

4. Grounds 1 and 2 of the application allege that the Judge used starting points that were too high and that he failed to give a sufficient discount for the applicant's plea of guilty and what is described as his frank admissions and full co-operation with the police. The Judge took 6 months for his starting point on the first conviction and 51/2 years for the second. In view of the circumstances they were not too high. He gave what may be described as the standard discount of one third for the plea of guilty and he cannot be faulted in that. There were no factors in mitigation other than the plea and the youth of the applicant. There is no evidence of any frank admissions or co-operation other than his admission.

5. Ground 3 of the application complains that the sentences should not have been ordered to run consecutively. It is clear that the two offences occurred at the same time, were based on the same facts and each was committed in the course of the other. For these reasons the sentences ought to have been ordered to be served concurrently.

6. This application for leave to appeal therefore succeeds to the extent that the sentences ought to have been ordered to be served concurrently. Treating the application as the appeal itself we so order.