HKSAR v. LO KAM FAI

CACC356/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 356 OF 2005

(ON APPEAL FROM DCCC 376 OF 2005)

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J U D G M E N T

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Hon McMahon J (giving the judgment of the Court) :

1. The applicant was convicted after trial before H.H. Judge Whaley in the District Court of offences of robbery (the 1^st offence), forgery of vehicle registration plates (the 2^nd offence) and going equipped for stealing (the 3^rd offence).  He was sentenced to six years and six months’ imprisonment for the 1^st offence, six months’ imprisonment for the 2^nd offence and one year’s imprisonment for the 3^rd offence.  All sentences were ordered to run concurrently resulting in a totality of six years and six months’ imprisonment.  The applicant now seeks leave to appeal against sentence only, he having abandoned his application for leave to appeal against conviction.

2. The facts of the case as found by the judge were that the applicant was one of a gang of robbers who went to a car park in Mongkok.  Some of them went to the cashier’s booth and two of them threatened the solitary cashier with knives.  They tied him up with plastic ties and blindfolded and gagged him with adhesive tape.  Various personal items of the cashier were then taken and $2,265 cash takings were stolen (the 1^st Charge). 

3. The role the applicant had played was that of a getaway driver.  He had affixed falsified registration plates to his car (the 2^nd Charge) and waited outside the car park for the others of his gang to return.  In his car were later found a knife sheath, adhesive tape, masks, gloves, a plastic strap and other items (the 3^rd Charge).

4. The police came upon the scene in mid-robbery, and the applicant and another person were successfully arrested.

5. The unrepresented applicant’s complaint is focused on the sentence imposed in respect of the robbery offence.  He says the starting point adopted by the judge of seven years’ imprisonment was excessive, particularly in view of the fact that he simply acted as a driver.

6. In R. v. Mo Kwong Sang [1981] HKLR 610, this court established guidelines for cases of armed robbery not involving firearms.  It is sufficient to say that when knives are produced by a gang of robbers and the victim is tied up, gagged and blindfolded, then a starting point of seven years’ imprisonment as taken by the judge in the present case (which was subsequently reduced by six months to reflect the applicant’s agreement of certain evidence at trial) cannot be said to be manifestly excessive.

7. It is true that the role of the applicant was restricted to providing and driving the getaway vehicle, and he was not directly involved in the acts of the robbery itself.  But in that regard, the judge said at the time of sentence :

“…. You are fully engaged in this joint enterprise to rob the shroff at the car park together with the 1^st defendant and the others, and it is clear on the facts that you contemplated and knew that knives were going to be used by those who actually carried out the robbery and that straps and adhesive tape were also going to be used.  These were in your car that you drove to the scene.

10. You are equally liable in law for everything that your accomplices, the 1^st defendant and the others, actually did when they robbed the victim.  And the fact that your role was essentially that of the driver driving them to the scene and to provide the getaway car after the robbery does not entitle you to any lesser sentence.”

8. With those comments we agree.  The applicant was part of a well-organised and relatively sophisticated gang of robbers.  It was due only to the alertness of three patrolling police officers that the robbery was interrupted.

9. No complaint can be made of the sentences imposed upon the applicant or of the totality of sentence which resulted.  The application is dismissed.