HKSAR v. CHAN CHUN KIT

CACC193/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 193 OF 2014

(ON APPEAL FROM HCCC NO. 339 OF 2013)

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JUDGMENT

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Hon McWalters JA (giving the judgment of the Court):

Introduction

1. The applicant seeks leave to appeal against a total sentence of 5 years and 6 months’ imprisonment imposed on him on 12 May 2014 by Deputy High Court Judge Wright, after his pleas of guilty on the same day to two counts of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.

The Background to the Offences

2. The first robbery was of Mr Paau Hiu Chun, aged 65, who was the proprietor of an antique stamp shop.

3. On 17 August 2012, the applicant went to Mr Paau’s shop, purporting to be interested in purchasing some commemorative stamps, and asked Mr Paau to show them to him.  Mr Paau showed the applicant a stamp album containing about 700 commemorative stamps, valued at about HK$100,000.  The applicant chatted with Mr Paau for some time.  Then, the applicant suddenly threw some pepper powder onto Mr Paau’s face.  Mr Paau’s eyes were irritated, causing tears and pain.  The applicant seized the stamp album and fled.  Mr Paau reported this robbery to the police.

4. The second robbery was of Mr Cheung Sik, aged 61, who was the proprietor of a shop selling antique banknotes.

5. On 29 August 2012, the applicant went to Mr Cheung’s shop and asked Mr Cheung to show him some antique banknotes.  Once the banknotes were put on the display table, the applicant suddenly threw some pepper powder onto the face of Mr Cheung.  Mr Cheung’s eyes were irritated and his vision blurred.  The applicant immediately grabbed 222 banknotes with face value of HK$107,270 from the display table and fled.  Mr Cheung immediately gave chase and alerted Mr Hui Kwok Kei, security guard of the shopping centre.  Mr Hui joined in the pursuit.  The applicant threw some pepper powder onto Mr Hui’s eyes and fled.  At the ground floor of the shopping centre, Mr Cheung succeeded in catching up with the applicant and grabbed his neck from behind.  However, the applicant resisted and made good his escape.  In the course of doing so, the applicant dropped a pile of banknotes.  The incident was reported to the police.  Upon checking, Mr Cheung confirmed that the applicant had taken away 49 banknotes. 

6. On 3 September 2012, the applicant went to “Kam Wui Coins Shop” in Yau Ma Tei and offered to sell to Mr Law Wing Cheung commemorative banknotes he had with him.  Having viewed the banknotes, Mr Law purchased 25 of them from the applicant and paid him HK$23,500 in cash.  Mr Law became suspicious and alerted Mr Cheung.  Mr Cheung immediately reported the matter to the police.  Mr Cheung went to Mr Law’s shop with the police and identified the applicant as the person who robbed him on 29 August 2012.

7. The applicant was arrested for robbery and under caution, he said “I did it”.

8. Upon searching the applicant’s person, the police found HK$23,500 in the applicant’s trousers pocket.  They also found 17 banknotes and $6,000 in the applicant’s shoulder bag and seized 25 banknotes which the applicant had sold to Mr Law. 

9. Mr Cheung identified all the 42 banknotes seized by the police as his property which had been stolen by the applicant on 29 August 2012.

10. In video-recorded interviews, the applicant admitted under caution the two offences.  He admitted, inter alia, that the $6,000 found in his shoulder bag was the proceeds from the sale of some of the commemorative stamps.

11. The stamp album containing about 700 commemorative stamps was never recovered.  Of the 222 banknotes stolen by the applicant on 29 August 2012, 215 of them were recovered.

Reasons for Sentence

12. After setting out the facts of the two offences the judge noted that in HKSAR v Chan Sai Chiu [2001] 1 HKLRD 478 the Court of Appeal had said that for an unarmed robbery where pepper had been thrown a starting point of 4 years’ imprisonment is appropriate.  He adopted this as his starting point.

13. He then turned to the criminal record of the applicant.  He said:

“Since the age of nine – you are now 39, so for the last 30 years – you have amassed 62 convictions of which 31 were for theft, two for burglary and several for crimes of violence. It is no exaggeration to describe you as a professional criminal, albeit a somewhat unsuccessful one.”

14. He considered that the criminal record of the applicant justified him in enhancing the starting point by 12 months in order to protect the public from his persistent misconduct.  The judge found the only mitigation was the applicant’s plea of guilty.  From his final starting point of 5 years’ imprisonment he then reduced the sentence by one third to 3 years and 4 months on each count to allow for the applicant’s pleas of guilty.

15. Finally the judge had regard to totality and, reaching the view that a total sentence of 5 years and 6 months’ imprisonment was the appropriate totality, he ordered 2 years and 2 months of the sentence for count 2 to be served consecutively to the sentence imposed for count 1. 

Grounds of Appeal

16. The applicant is unrepresented but has set out his complaints in a letter to the court dated 2 November 2014.  In it he refers to two unrelated cases in which he says more lenient sentences were imposed.  They are HCCC 307/2014 and HCCC 536/2014.

17. He also said that prior to sentencing, he requested his counsel to ask the trial judge to obtain from the Correctional Services Department a psychological assessment report that it had prepared on him.  He claimed that this report shows that he is not suitable for incarceration due to his psychological condition and he should receive regular psychological treatment.  However, defence counsel did not raise this request.  He said that in previous cases judges had accepted the psychological report and sentenced him to concurrent sentences.

18. The applicant does not dispute the enhancement adopted by the judge.  It is the applicant’s case that the totality arrived at by the judge and achieved by the consecutive sentences are manifestly excessive.

Discussion

19. The starting point adopted by the judge and the enhancement are consistent with the approach adopted by the Court of Appeal in Chan Sai Chiu. Given the applicant’s appalling criminal record, the judge was entitled to increase the starting point by 25% to 6 years. 

20. The two Court of First Instance cases relied on by the applicant are quite different from the applicant’s case.  No meaningful assistance can be derived from comparing the applicant’s sentences with the sentences imposed in those cases.

21. If the applicant suffers from any psychological problems as a consequence of his incarceration then they will no doubt be properly treated by the prison authorities.  As with any medical condition from which a prisoner suffers, it does not constitute a reason for reducing his sentence.

22. The two robberies of which the applicant was convicted are quite separate and distinct from one another.  Each required to be sentenced separately and then a view taken of the appropriate totality.  This the judge did.  There is no error by him in his approach to the sentencing of the applicant or in his application of legal principle.  Given the record of the applicant and the serious nature of these offences the judge was perfectly entitled to assess 5 years 6 months as being the appropriate totality for the applicant’s criminal conduct.

Conclusion

23. We are, therefore, of the view that there is no merit in any of the applicant’s complaints and we dismiss his application for leave to appeal his sentence.