HKSAR v. CHAN SIU KUEN

CACC 300/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 300 OF 2013

(ON APPEAL FROM DCCC 482/2013)

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J U D G M E N T

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Hon D Pang J (giving the judgment of the court):

1.  On 29 July 2013, the applicant and his co-accused pleaded guilty to one joint charge of robbery in the District Court. On the following day, the trial judge (Judge WK Kwok) sentenced them each to a term of 4 years and 10 months’ imprisonment. On 22 August 2013, the applicant gave notice to apply for leave to appeal against sentence. That application was dismissed by the single judge (Lunn JA, as he then was) on 20 November 2013. On 28 November 2013, the applicant renewed his application for leave to appeal against sentence. On the same day, he also gave notice to apply for leave to appeal against conviction out of time. These latter applications are now before us for determination. The applicant has throughout been acting in person.

THE FACTS

2.  The facts as agreed by the applicant for his plea were helpfully summarized by the trial judge in his Reasons for Sentence.  In the summary, the applicant was referred to as “D1” whereas his co-accused was “D2”:

“2. This offence took place on 16 January 2013 shortly before 6 pm. The victim was a female from the Mainland. She was allowed to enter and stay in Hong Kong as a visitor. In breach of her condition of stay, she worked as a prostitute in the location particularized in the charge which was a room rented by her where she operated what was known colloquially as a ‘one woman brothel’.

3. At the time of the offence, the two defendants posed as customers and visited the victim in the offence location. They brought along a cutter 13 cm in length exclusive of the metal blade and a roll of adhesive tape. They brandished the cutter at the victim and tied her up with the adhesive tape. They robbed her of one smartphone, cash in the sum of HK$4,500 and Renminbi ￥500. The total value of the stolen property was equivalent to about HK$9,600. After the robbery, they immediately fled the crime scene in different directions. The victim managed to free herself. She chased after the defendants and shouted ‘robbery’. Three citizens assisted in the pursuit and eventually apprehended D1, and took away the cutter used in the robbery from D1’s trousers pocket. The victim also arrived with her neck wrapped by adhesive tape. She went up to D1 and said something in Putonghua. Later, the police also arrived and arrested D1.

4. Under caution, D1 admitted that he committed the offence with D2.  He admitted that he had pointed the cutter at the victim and told her not to act recklessly.  A surgical mask was also found in D1’s possession.  D1 admitted under caution that he brought along the mask as he might need it during the robbery but he did not wear it.”

3.  To complete the picture, D2 was arrested on 17 January 2013, one day after the robbery.  From him, the victim’s phone and what was left of her cash were recovered.  The applicant was not found to be in possession of any of the stolen property.

THE SENTENCE

4.  Apropos the sentence he imposed, the judge stated:

“16. The offence committed by the defendants was very serious because (1) this was an armed robbery in which a cutter was brandished at the victim clearly with a view to putting her in fear of her personal safety; (2) the victim was tied up by adhesive tape, and covering her mouth and wrapping around her neck adhesive tape could cause potential danger to the victim; (3) the robbery was carried out by two robbers on a lone woman in private premises, and (4) the offence was premeditated. In addition, the defendants robbed the victim clearly because she was a vulnerable target due to the very nature of her work as a prostitute. It has been said time and again that deterrent sentence had to be imposed to protect victim of this kind: HKSAR v Cheng Fuk Wa (CACC442/2005), HKSAR v Lai Kwok Fai (CACC346/2008). For these reasons, even though the defendants plead guilty, the only viable sentencing option is imprisonment. It is just a question of what is the appropriate length.

17. The tariff sentence for an armed robbery was laid down in the case of Mo Kwong Sang v The Queen [1981] HKLR 610 …….

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19. Applying the Mo Kwong Sang tariff to the present case, since a cutter had been brandished at the victim to threaten her, a starting point of 5 years’ imprisonment is warranted. Even if D1 had not pulled out the blade of the cutter, I do not think it makes any difference as the threat to pull out the blade was always there when D1 told the victim not to act recklessly when he was pointing the cutter at her. This starting point must be adjusted upward by one year to 6 years’ imprisonment because the robbery involved invasion of private premises, and then by another one year to 7 years’ imprisonment because the victim’s hands, mouth and neck were tied up with adhesive tapes. Since this robbery was carried out by two persons rather than one and they clearly acted with premeditation, the sentence should be adjusted further upward by another 3 months. For these reasons, I adopt a starting point of imprisonment for 7 years and 3 months. It is permissible to adopt a starting point in excess of the jurisdictional limit of 7 years’ imprisonment that can be imposed in the District Court so long as the ultimate sentence is within the jurisdictional limit and the defendant is given a meaningful discount for his guilty plea.

20. I note submissions by Mr. Chan and Miss Lee on the role played by each defendant in the robbery. I note also that D1 claimed that he did not instigate the offence. However, in my view, this robbery was clearly a joint enterprise carried out by D1 and D2. As to who first put forward the idea of committing this robbery and the precise role played by each one of them, I do not think it material since each defendant is clearly responsible not only for his own personal acts but also for the acts carried out by his co-defendant.

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24. In the present case, the only valuable mitigating factor is the guilty plea of each defendant.   For that reason, each one of them is entitled to a full one-third discount of the sentence.  I note that the victim had been repatriated to the mainland, and that she was not on the schedule of witnesses.  I have considered whether each defendant should be given a greater discount for their guilty plea because of the absence of this witness. However, it is quite clear to me that the evidence against each defendant is very substantial if not overwhelming. D1 was caught fleeing from the scene and D2’s fingerprints were found in the premises and in the adhesive tape used to tie up the victim.  In other words, even if the victim did not testify, it was still very likely that each defendant would be convicted.  For this reason, I decide not to give each defendant more than the usual one-third discount. ”

THE APPEAL AGAINST CONVICTION

5.  At the end of a one-page document attached to his Notice of Application for Leave to Appeal against Conviction out of time (dated 28 November 2013), the applicant summed up his ground of appeal in the following concluding remark – “I knew nothing at all”.  It was, the applicant asserted, D2 who brought the “knives” and adhesive tape.  It was D2 who took him to where the victim worked.  It was D2 who gagged and tied up the victim. It was only when D2 handed him one of the knives and started to restrain the victim that he realized what D2 was doing.  He (the applicant) did not take any property from the victim.

6.  In his affirmation for an extension of time to appeal against conviction of equal date, the applicant stated further that:

“On November 20, I lodged an appeal with the Court of Appeal at Admiralty but the original judgment was upheld. Actually, I sometimes acted on [D2’s] instructions. I knew nothing at all. [D2] and I went to the place in the old building together to visit the brothel. I did not know anything about [D2] robbing the woman of her money and mobile phone. [D2] never said he would rob the woman. I had absolutely no knowledge at all. [D2] and I were friends but he was cruel to me. I really knew nothing at all. I am sure that Your Lordship will treat me well.”

7.  By a letter dated 3 March 2014, the same version of event was repeated to this Court.  It was explained that the applicant followed D2 to the locus in quo because he actually wanted the service of a prostitute.  The applicant reiterated that “I have no idea what [D2] has done …...  It was [D2] who instructed me to do it”.

8.  This letter was preceded by one dated 29 October 2013, which had a very similar content, and which was sent to this Court for the purpose of the applicant’s initial application on sentence, which (as stated) was dismissed.

Discussion

9.  The law on granting an extension of time to apply for leave to appeal is trite.  As pointed out by this Court in HKSAR v Medina & Another CACC 296/2007:

“In considering whether leave should be granted ……, we look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the application for extension of time. We would also look at the ground of the proposed appeal to see whether, by refusing leave to appeal, we were not shutting out a substantial and plainly arguable ground of appeal. Substantial grounds must be shown for the delay before we would grant indulgence, and the longer the delay, the more onerous is the duty of the applicant.”

10.  The circumstances in which a defendant can recant his unequivocal plea of guilty are equally well settled: HKSAR v Wing Chi Yuk [2000] 3 HKLRD 125.  Such a plea becomes null if it can be shown that (i) the facts admitted by the defendant do not amount to the offence with which he is charged; (ii) the admitted facts are equivocal as to guilt; (iii) the plea was tendered to a charge which was defective on its face or invalid or unclear; (iv) the plea was tendered involuntarily by duress or misrepresentation or was not an exercise of free choice; (v) the plea was induced by fraud or made under a fundamental mistake; or (vi) the plea did not result from a deliberate and informed decision. 

11.  Without question, the applicant can pass neither of these tests.  He has provided this Court with no discernable reason for the 3-month delay in applying for leave to appeal against conviction (see paragraph 6 above for his affirmation).  Before us, he puts the blame on the Correctional Services Department.  It is alleged that the department refused to accept his papers.  Yet, a cursory inspection of his Notice dated 22 November 2013 shows that the word “Conviction” had been crossed out, this indicating his intention to appeal only against sentence. 

12.  As regard merit, his complaint about the conviction itself is dubious.  It amounts to nothing more than a blind denial of knowledgeable participation.  There is no explanation as to why then he had to hold on to the “knife” and remain on the victim’s premises.  This denial also contradicts what took place in the lower court.  It sits uncomfortably with counsel’s reference to some “firm instructions” from the applicant to plead guilty[1] – on the basis that there was a joint enterprise[2], who then asked the judge for an adjournment to agree with parties on the provenance of the cutter[3].  In mitigation too, the applicant’s full acceptance of guilt was emphasized[4].  There can be no misgivings about his plea.

13.  The applicant’s application for leave to appeal against conviction out of time is to be denied.

THE APPEAL AGAINST SENTENCE

14.  The following is stated in the applicant’s Notice of Application for Leave to Appeal against Sentence (dated 22 August 2013):

“Everything was done by [D2]. I had no knowledge at all. It was he who sealed the victim’s mouth and tied the victim’s hands. The knife was given to me by him.”

15.  No ground was attached to his Notice of Renewal of Application after Refusal by the Single Judge (dated 28 November 2013).

16.  All the applicant’s letters referred to above go also to the question of sentence, which is what the applicant clearly intended.

Discussion

17.  For the reasons stated in paragraphs 9 to 11 above, there is no basis to suggest that the robbery in question was not a joint enterprise.  It follows that the trial judge was correct in stating that[5]:

“As to who first put forward the idea of committing this robbery and the precise role played by each one of them, I do not think it material since each defendant is clearly responsible not only for his own personal acts but also for the acts carried out by his co‑defendant.”

18.  This was also the view of the single judge who gave written judgment upon dismissing the applicant’s initial application.

19.  Given all the facts of the case, and applying the relevant tariffs, we are satisfied that the sentence passed on the applicant was a correct one.  His renewed application is bereft of merit.

CONCLUSION

20.  The applications on both conviction and sentence are dismissed.

Hon Lunn VP (giving the judgment of the court):

LOSS OF TIME

21.  At the conclusion of the delivery of the judgment of this court by Mr Justice Pang in which the application for leave to appeal against conviction out of time and the renewed application for leave to appeal against sentence were both dismissed, this court asked the applicant if he wished to say anything as to why this court should not exercise its power, pursuant to section 83W(1) of the Criminal Procedure Ordinance to order, in effect, a loss of time, namely that part of the time in which he has been imprisoned pending the determination of his application in respect of sentence would not count towards his completion of that sentence.

22.  In response, the applicant merely repeated the mantra he has deployed throughout the hearings and in his written submissions, namely, “I knew nothing at all”.  That was in connection with his other assertion that it was only when he was handed a cutter by his co-accused that he realised what was happening.

23.  In the circumstances, we are satisfied that it is entirely appropriate that we make the order that we now do.  We order that 2 months of the time during which the applicant has been in custody, pending determination of his appeal, shall not be reckoned as part of the term of the sentence to which he is, for the time being, subject.

[1]  Appeal Bundle, p 20C.

[2]  Appeal Bundle, p 20N.

[3]  Appeal Bundle, pp 20T – 22M.

[4]  Appeal Bundle, p 29C.

[5]  Para 20, Reasons for Sentence.