HKSAR v. KWONG CHI MING

CACC 62/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 62 OF 1999

(ON APPEAL FROM DCCC 1214 OF 1998)

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 19th January 1999, the Applicant pleaded guilty to a charge of robbery and four charges of theft before Judge Wilson in the District Court. He received sentences of four years on the first charge and one year on each theft, to be served concurrently with each other but consecutively to the sentence for robbery. The Applicant now seeks leave to appeal against the total sentence of five years' imprisonment.

2. In passing sentence, the judge said this, referring to the Applicant:

"He and another unknown man were disturbed while burgling an office. The employee who returned to the office and who disturbed them was dragged back inside and tied up and gagged. The victim's wallet, cash and possessions were taken. The defendant and the other man then embarked on a spree of withdrawals from cash machines with the victim's stolen credit cards and within a space of a few minutes withdrew a total of $21,000. The victim was left tied up in his office and it was over two hours before he managed to free himself. He suffered minor friction burns to his wrists.

The defendant is 31 years of age and has four previous convictions, the last being for attempted burglary in 1996 for which he was sentenced to 1 year's imprisonment.

All the offences are distinct, but I will treat the thefts as one series and impose concurrent sentences on those. I select a starting point for the robbery of 6 years and discount that by the usual one-third for the plea of guilty. I select a starting point of 18 months for the theft charges and discount that for the pleas of guilty.

In the result, on charge 1, I impose 4 years' imprisonment and on charges 2 to 5 inclusive, I impose 1 year's imprisonment on each charge concurrent but consecutive to the sentence on charge 1."

3. The Applicant's grounds of appeal accept that the sentence for the robbery was in principle correct, but the essence of his complaint is that this sentence was sufficient bearing in mind that the theft charges arise out of robbery.

Where credit card PIN numbers are extracted from victims by threats or force or both, this court has indicated on many previous occasions that this will add to the gravity of the offences. In this case, the situation was very different. The PIN numbers were found in the wallet of the victim. We are inclined, therefore, to agree with the Applicant's point of view that the judge, in taking a starting point for sentence of six years, has selected the right starting point for a robbery of this kind to include the thefts of money subsequently obtained. In these circumstances, it is our view that the proper order would have been to have made the sentences for the thefts concurrent with the sentence for robbery, making four years in all.

4. Accordingly, we shall give leave and, treating the hearing as the appeal, we reduce the sentence to one of four years in total by making the other sentences, on counts 2 to 5, concurrent with four years on count 1. To that extent, the appeal is allowed.