R. v. CHEUNG KWOK WAH

IN THE COURT OF APPEAL

1995, No. 67

(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is an application for leave to appeal against sentence. The applicant pleaded to one count of robbery for which he was sentenced to imprisonment for 5½ years and one count of wounding with intent for which he was sentenced to 4 years' imprisonment.

2. The judge, by ordering the two sentences to be partly concurrent and partly consecutive, came to a totality of 6½ years' imprisonment. The applicant was at the time also serving a sentence of 15 months for an offence connected with illegal immigration.

3. The facts of the case were simple. At about 5:00 am on 7 June last year, the applicant approached a courting couple at Repulse Bay Beach and threatened them with a 2-foot long water pipe. Having demanded money from them, he snatched from the lady her bag and ran off. Later, he removed $1,000 from the bag and threw the bag away.

4. The boyfriend ran after the applicant and in the ensuing struggle he was hit on the head by the applicant with the water pipe. Eventually, the applicant was arrested by the police.

5. It was disclosed at the hearing that the applicant was at the time 21 years of age. The judge found him to be a 3-time illegal immigrant in a short period of three months.

6. In adopting a starting point of seven years for the robbery, the judge gave a discount of 20% for the plea of guilty as suggested by the applicant's defence counsel. In assessing sentence, the judge also noted "a large amount of overlap between the incidents giving rise to the two convictions".

7. In our judgment, the starting point of seven years adopted by the judge was too high. In our view, the appropriate starting point would have been one of six years. As the judge rightly said, there were no other mitigating circumstances apart from his plea of guilty. For the plea we reduce the sentence to one of four years. We are further satisfied that the sentence on the immigration charge should, taking into account totality, have been made partially concurrent with the other sentence.

8. We, therefore, allow the application and treat the hearing of the application as the hearing of the appeal. We allow the appeal ordering that the sentence of 5½ years be varied to one of 3½ years and that the sentence of 4 years be reduced to one of 3 years. Those sentences are ordered to be concurrent with each other and with the remainder of the 15 months sentence as from the date upon which the original sentences were imposed i.e. 6th January 1995.

Representation:

Mr Robert B Buchanan (D.L.A.) for Applicant

Mr T Casewell of the Attorney General's Chambers for Crown/Respondent