HKSAR v. SUN YU HING

CACC 398 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 398 OF 2010

(ON APPEAL FROM HCCC 282 OF 2010 )

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the Reasons for Judgment of the Court):

Introduction

1.  At the end of the hearing on 25 May 2011, we granted the applicant (Sun Yu-hing) leave to appeal against sentence. Treating the application as the appeal proper, we allowed the appeal and reduced his sentence from 8 years to 6 years and 10 months. We indicated that we would hand down our reasons in due course and this we now do.

The Facts

2.  The applicant worked for the victim (Ms Hung) in her foot massage parlour. The applicant had obtained from Ms Hung a loan of $9,000 and had agreed to repay it by working for her. Instead, he staged a robbery against her with an accomplice.

3.  On 22 May 2008 just before 11 p.m. when the massage parlour was about to close, the applicant entered the shop and pretended to have a discussion with Ms Hung about the repayment of the loan.

4.  The applicant’s accomplice came in, asking for a massage, and after being told that the shop had closed, asked to use the toilet. When he came out of the toilet, he pointed a knife at Ms Hung’s waist and declared robbery.

5.  The applicant and his accomplice pushed Ms Hung into a room and pinned her onto a massage couch before strapping her legs and hands, and blindfolding her with adhesive tapes. They ransacked the place and removed Ms Hung’s items of jewellery.

6.  Ms Hung was asked for her credit cards and ATM cards passwords. They told Ms Hung that one of them would be going to withdraw money from the ATM machines and the other would be watching her. They threatened to stab her to death if she provided a false code. They then covered her mouth with adhesive tapes.

7.  When Ms Hung was being tied and blindfolded, she struggled once or twice and the applicant’s accomplice threatened to kill her if she made a noise.

8.  The applicant and his accomplice then left and Ms Hung was rescued by a security guard who heard the noise when Ms Hung was trying to free herself from the straps and the adhesive tapes.

9.  Ms Hung suffered bruises to her wrists and right ankle and her losses included two necklaces, a diamond ring, a gold waist chain, a Rolex watch, one HSBC credit card, two ATM cards, a pendant, two mobile phones and cash of $50,000.

10.  Shortly before mid-night the same day, the applicant left Hong Kong via the Lok Ma Chau Control Point. He was arrested about two years later, on 6 May 2010, when he returned to Hong Kong from the Mainland. Under caution, the applicant admitted the offence and claimed to have sold the pieces of jewellery taken from Ms Hung for $70,000, and that he had spent all the money. The applicant further claimed that he had returned to Hong Kong to surrender to the police.

11.  On 28 August 2010, the applicant pleaded guilty to robbery at the magistracy and was committed to appear before Beeson J in the High Court on 26 October 2010 for sentence.

12.  The judge adopted a starting point of 10 years’ imprisonment. Instead of giving the usual one-third discount for the guilty plea, the judge only reduced the sentence by 20% to 8 years. The judge pointed out that the applicant, by staying outside Hong Kong for two years, had caused inconvenience to both the Immigration and the Police who had to put the investigation on hold. The judge further pointed out that the longer the applicant stayed outside Hong Kong, the higher risk that the applicant’s crime might not be properly dealt with.

The Grounds of Appeal

13.  Mr Tse Hon Yuen, for the applicant argued that the judge was wrong only to give the applicant a 20% discount, instead of the usual one-third, for his guilty plea. Mr Tse emphasized that the applicant did not abscond during trial and that he had returned to Hong Kong to surrender and had in fact pleaded guilty at the committal stage.

14.  At the invitation of the Court, Mr Tse also suggested that the 10-year starting point for the robbery charge and the overall sentence of 8 years’ imprisonment, on a plea, was manifestly excessive.

Discussion

15.  Under the sentencing guidelines for convicted robbers laid down in R v Mo Kwong-sang [1981] HKLR 610, the appropriate sentence in a case of armed robbery with the display of knife or other dangerous weapon (excluding firearms) should be five years’ imprisonment. If it involves an invasion of private premises, six years would be appropriate. If physical violence, including tying victims up, is used; a sentence of seven years should be considered. If other aggravating factors are present such as invasions of domestic premises during the night, threats made to victims, ill-treatment of victims, multiplicity of offences of a similar kind or more than one person taking part in the robbery, the sentence should be increased.

16.  In adopting a 10-year starting point, the judge said:

“This was a planned robbery of a vulnerable business committed by an ex-employee who knew how the business operated, together with an accomplice. A knife was displayed and threats to kill were made. The victim was manhandled, tied with cable ties, and had her mouth and eyes taped. She was made to disclose her passwords. A substantial (amount) of jewellery and cash was obtained, and no property or money has been recovered.”

17.  The judge was right in identifying the aggravating features.

18.  However, the 10-year starting point adopted by the judge is twice the usual starting point of 5 years for armed robbery and that a 10-year starting point is normally reserved for a single robbery with the display, but not the discharge of a firearm.

19.  In Ng Wai-ming and others v R [1980] HKLR 228, the three appellants were jointly charged with another with robbery of a Securicor armoured van and possession of a firearm. The third appellant was an employee of the company. The court found that he must have been an integral part of the plan and that it might well not have been taken place without his co-operation. He was convicted and sentenced to 15 years’ imprisonment. On appeal, the sentence was reduced to 10 years.

20.  Ms Peggy Leung, for the respondent, had not been able to identify a similar case of robbery in which a 10 year-starting point was adopted.

21.  Despite the aggravating factors identified by the judge, it is fair to say that Ms Hung was not assaulted and there was no suggestion of any unnecessary violence to or ill-treatment of Ms Hung. The offence could have been much worse.

22.  Whilst the case involved invasion of Ms Hung’s shop, it was not an invasion of a private domestic premises and that as the applicant was known to her, the fear caused to Ms Hung might not have been as great as that to a victim when robbers invaded domestic premises at random. Also we could not ignore the fact that the applicant only faced one charge.

23.  If the 10-year starting point adopted by the judge were to be approved, there would be very little room to maneuver in cases involving the further aggravating factors as identified.

24.  We were persuaded, even taking into consideration the applicant’s previous similar convictions, that a more appropriate starting point was about 8½ years’ imprisonment.

25.  A defendant who pleads guilty to the charge is normally entitled to a one-third discount of sentence, which “is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time”.

26.  “The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount.” (Per Kirby J in R v Cameron (2002)187 ALR 65)

27.  In HKSAR v Sze Kwan Lung & Others (unreported CACC 92/2002), Stock JA expressed the rationale for the discount as a “credit to an accused for his ‘willingness to facilitate the course of justice’” (see paragraph 47 of the judgment).

28.  The applicant went to the Mainland almost immediately after committing the offence. He must have realized that, as he was known to Ms Hung, he would not be able to escape from the police if he had remained in Hong Kong. What the applicant did demonstrated not a willingness to facilitate the course of justice, but quite the opposite. By absconding, the applicant had rendered the administration of justice more costly and more time-consuming.

29.  The judge was entitled to view the applicant’s attempt to flee as causing inconvenience to the Police and the Immigration, leading to a higher risk that his crime might not be properly dealt with.

30.   As observed by Stock JA in HKSAR v Chow Tak-fuk, CACC 428/2004, “…those might be minded to flee should not be led to believe that if ultimately they return they will be in no worse a position than had they not fled in the first place.”

31.  There was a logical foundation for the 20% discount instead of the usual one-third for a guilty plea and the judge’s exercise of discretion should not be interfered with even though a higher discount of 25% might have been adopted in other similar cases.

32.  With a 20% discount on 8½-starting point, the proper sentence is one of about 6 years and 10 months’ imprisonment, which we considered to be appropriate.

Conclusion

33.  We therefore granted leave to the applicant to appeal against sentence. Treating the application as the appeal proper, we allowed the appeal and reduced the sentence to the extent indicated.