HKSAR v. SHEK TSZ-YUK AND ANOTHER

CACC 491/2001 &
CACC 528/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 491 & 528 OF 2001

(ON APPEAL FROM HCCC 286 & 293 OF 2001)

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CACC 491/2001

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. These applications have been listed together in order to deal with an issue which is common to both of them. The Applicant in CACC 491/2001 and both Applicants in CACC 528/2001 had unlawfully entered Hong Kong. Soon afterwards, they committed the separate robberies in these applications. They all pleaded guilty and they were given enhanced sentences which exceeded the usual maximum guideline tariff under Mo Kwong-sang v The Queen [1981] HKLR 610. Seemingly, they received higher sentences for their criminality on account of their status as unlawful entrants from the Mainland. The main point taken in these applications is that there was no justification for enhancing the sentences imposed on any of the Applicants beyond a starting point of seven years.

CACC 491/2001

2. On 10 October 2001, the Applicant in CACC 491/2001, aged 26, confirmed the plea he had entered on 24 August 2001 at Eastern Magistrates' Court to a charge of robbery when he appeared in the Court of First Instance before Deputy Judge McCoy, SC. The Applicant was sentenced to five years and eight months' imprisonment against which he now seeks leave to appeal.

The facts

3. The agreed summary of facts revealed a robbery of a kind with which this court is all too familiar. On 26 April 2001, at about 8.30 p.m., the occupant of premises (PW1) in Sek Kong in the New Territories returned to his home where he quickly discovered that he had disturbed two burglars. These intruders retreated to the kitchen where they armed themselves with a chopper and a fruit knife. PW1's hands were grabbed by the two men. The culprit holding the chopper was identified some days later as the Applicant.

4. PW1 was then threatened with the weapons the intruders had picked up from his kitchen and he understandably and sensibly in the circumstances put up no resistance and offered to hand over his money. He was then pushed into a bedroom where his watch was removed. PW1 handed his wallet to the Applicant who took out some banknotes and then discarded the wallet on the bed. The Applicant then briefly left the bedroom while the unknown man kept PW1 under threat with the knife he was holding. The Applicant returned with a cord which was used to tie PW1's hands behind his back. The Applicant also tied PW1's legs with a scarf and stuffed a sock into his mouth.

5. Thereafter, PW1's home was ransacked. Eventually the robbers left and PW1 was able to untie himself. He informed the police about what had happened and provided a full list of the items which had been stolen from him.

6. On 30 April 2001, the Applicant was found by a lorry driver (PW3) hiding under his vehicle. PW3 had parked the vehicle in a carpark in Yuen Long, and when he inspected its undercarriage he noticed the Applicant. The police were informed and the Applicant was arrested. He had no identity card, but he did have a number of items in his possession which matched the description of property stolen from PW1.

7. On 9 May 2001, PW1 was able to pick out the Applicant at a formal identification parade as one of the two robbers who had invaded his home on 26 April 2001. Further support for this evidence was provided by PW1 and his brother (PW2) who were able to identify some of the property found in the Applicant's possession as items which had been taken from their home.

Sentencing

8. Mitigation was advanced by counsel in the court below that the offence had originally been intended to be a burglary aimed at stealing food items from the premises. The prosecution accepted that this was not a premeditated robbery.

9. Counsel then appearing for the Applicant invited Deputy Judge McCoy to adopt the guidance set out in Mo Kwong-sang v R (above) and to take a seven-year starting point having regard to the violence it was accepted had been used which had included tying up the victim.

10. In passing sentence, the judge acknowledged the Applicant's early plea and the fact that PW1, whilst no doubt terrified by what happened to him, had not in the result received any physical injury. Having briefly reviewed the facts of the case, the judge went on to say:

"(Defence counsel) refers very helpfully to the leading case of Mo Kwong Sang, and he also referred me in his submission to R v Chan Chung Man [1986] HKC 261. In Mo Kwong Sang, the Court of Appeal said, setting tariffs for robbery offences, that where a robbery is carried out involving a knife, the sentence should be five years. Where it involves private premises, such as these, it should be six years. Where a person is tied up, it should be seven years. All these factors exist in this case, but there is more.

The Court of Appeal went on to add that where the crime is caused with others so that there is an accomplice, that is an additional aggravating feature, and here we have this man immobilized and a sock put in his mouth to prevent him calling out. It must have been a truly terrifying experience to be robbed in these circumstances in (his) own premises.

But in my judgment there is an additional aggravating feature. There is a significant incidence of illegal immigrants from the Mainland coming here to commit serious crime. They enter illegally, they are not able to lawfully work here, and doing so carries considerable penalties for both an employer and an employee, and rightly so. It is almost inevitable, unless they surrender to the police, that to be able to survive here these people must resort to serious crime like robbery to obtain money and possessions that can be sold or traded for food and other things.

Anyone like you who comes to Hong Kong to commit crime is deliberately targeting the people of Hong Kong. This is an aggravating feature which the courts must take into account to deter others from following the same course ..........

In my judgment, on the facts of this case, your case calls for a sentence before the discount for a plea of guilty of 81/2 years' imprisonment. However, I will reduce that by one-third because of your plea of guilty, and I will therefore sentence you to a term of 68 months' imprisonment - 5 years and 8 months imprisonment." (Emphasis added) (Appeal bundle pp. 6-7)

The application

11. Mr Robert Andrews, who now appears on the Applicant's behalf, submitted in his written argument that the starting point adopted by the judge effectively revealed an increase of eighteen months' imprisonment to take into account the "aggravating feature" arising from the Applicant's status as an illegal immigrant who had come to Hong Kong to commit crime. Mr Andrews contended that on the facts of this robbery a starting point of seven years' imprisonment would have been wholly in keeping with the Mo Kwong-sang guidelines. This was not, he submitted, a planned robbery where the two culprits had deliberately set out to attack their victim and, even if it had been, he contended that the additional eighteen months' imprisonment which had been added to the starting point, representing a 15 per cent "mark up", had led to a sentence which was manifestly excessive.

12. In reply, Mr Jackson Poon, for the Respondent, referred us to a number of decisions of this court which, although not apparently intended to do so, in fact served to illustrate that there was force in Mr Andrews' submissions, albeit perhaps for reasons which Mr Andrews had not initially sought to argue.

13. However, the Applicant, in his original homemade grounds of appeal, had referred to his appearance in Tuen Mun Magistrates' Court where, according to him, he had been sentenced to fifteen months' imprisonment for remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong. Neither counsel for the Respondent nor for the Applicant had specifically addressed this issue in their written submissions and nothing of the kind was apparently referred to during the proceedings in the Court of First Instance. Accordingly, counsel for the Respondent was invited to address this issue in today's proceedings, having been alerted in writing last week to the fact that we would wish to hear argument upon it.

14. As it now turns out, the Applicant appeared in Tuen Mun Magistrates' Court on 18 October 2001 where he pleaded guilty to remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115. He was sentenced to fifteen months' imprisonment to run consecutively to his sentence for the robbery which is the subject of the present application.

15. We are left with the distinct feeling, therefore, that the Applicant, in this particular regard, has inadvertently been punished twice for the same criminality. The robbery offence was said to have been aggravated for the purposes of sentence by circumstances which in fact amounted to the further offence, properly dealt with in Tuen Mun Magistrates' Court, of remaining in Hong Kong without authority. The guideline tariff for such an offence, following R v So Man-king & Ors [1989] 1 HKLR 142, when committed for the first time, is usually to be regarded as a consecutive sentence of fifteen months' imprisonment on a plea of guilty to the sentence imposed for any other crime committed in Hong Kong for which a prison sentence is appropriate. (See also: HKSAR v Kong Yung and Anor [1999] 1 HKC 395 at 397B. In that case, although a starting point of "eight to nine years" was held to be at the "top end of the range" on facts which were not unlike the instant case, the sentencing judge had in fact reduced the sentence he would otherwise have imposed to take into account the sentence of fifteen months which the applicants had to serve for their unlawful entry.)

16. It is most unfortunate, as seems to be the case, that the judge was not informed about the further proceedings at Tuen Mun Magistrates' Court which were, at the time he came to sentence the Applicant, awaiting the outcome of the prosecution in the Court of First Instance. In future, we express the earnest hope that when the Court of First Instance is called upon to deal with any similar situation, the prosecution will make it its duty to inform the court of the proceedings which are yet to be taken in the magistrates' court.

17. In all the circumstances, we consider that the robbery, for which alone the Applicant had to be sentenced in the Court of First Instance, was one which, when all the aggravating factors had been taken into account, merited a sentence of seven years' imprisonment after trial. We are not, of course, saying that a starting point of more than seven years should never be taken for a robbery involving a knife or similar weapon where there are aggravating factors to be taken into account. Whether further enhancement of sentence is called for will entirely depend upon the facts of each individual case.

18. Accordingly, we shall grant leave, and treating the hearing as the appeal, we shall reduce the sentence for this robbery by a year to four years and eight months' imprisonment. This, of course, does not affect the sentence of fifteen months' imprisonment imposed at Tuen Mun Magistrates' Court, which was, very properly, ordered to run consecutively.

CACC 528/2001

19. We do not need to deal with the circumstances of the applications in CACC 528/2001 in the same detail as the other application we have already considered. On 14 November 2001, these two Applicants (D1 and D2, respectively) appeared before Pang J in the Court of First Instance, where they confirmed their earlier pleas of guilty in the magistrates' court to a robbery. They were each sentenced to five years and eight months' imprisonment. The judge had taken a starting point of eight and a half years' imprisonment before giving the usual one-third discount for their pleas.

20. In short, the Applicants had arrived in Hong Kong by raft with a third unlawful entrant. The three men walked to a house near the place where they had landed. They entered the house of a married couple, both aged 63, at 7.45 p.m. They were all armed with choppers which they had kept in the waistbands of their clothes. PW1 was threatened by D1 with one of these weapons and he was told to give D1 some clothes. When PW2 saw her husband threatened with a chopper she became very scared and ran out of the house. One of the robbers caught her and she shouted for help. Her cries were heard. The neighbours called the police and the culprits were all caught. The occupants of the house were not physically harmed. If they had been, there would have been ample justification on that account to enhance the sentence.

21. In passing sentence, the judge remarked that the Applicants had "sneaked into Hong Kong to commit a crime". Although objection was taken by Mr Andrews in his written argument to this analysis, it seems to us that the inference drawn by the judge was wholly proper and the only sensible conclusion he could have reached. The Applicants had come armed and ready for action with the kind of weaponry which could only have meant that a criminal enterprise was contemplated by them and in no time at all that is precisely what they were engaged upon.

22. There was really no mitigation beyond their pleas of guilty. Again, the question we have had to ask ourselves is whether a sentence of more than seven years' imprisonment was justified as a starting point. In this context, Roberts CJ in Mo Kwong-sang (above) at p. 611 said:

"We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims, ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

These guidelines are intended to apply to those who are convicted after a trial."

23. We think that when the aggravating features to be found in the instant case are looked at together, and in particular the fact that neither of the victims suffered any physical harm, the judge must have taken the Applicants' unlawful status in Hong Kong as an additional factor which justified a further enhancement in the starting point. They had, after all, as the judge correctly stated, come to Hong Kong to commit a crime. However, this seems to us, as it did in CACC 491/2001, to have amounted to a double punishment as we have now been told that these Applicants, on 14 November 2001, which was the same day that they were sentenced in the Court of First Instance for robbery, were immediately taken to Tuen Mun Magistrates' Court. There, they each received a sentence of fifteen months' imprisonment, to run consecutively to their sentences for robbery, in respect of their offences of remaining in Hong Kong without authority. Again, the Court of First Instance was apparently, and most unfortunately, never informed of the course the prosecution proposed to take.

24. Accordingly, we propose to give leave to both Applicants in CACC 528/2001. Treating the hearing as the appeal, we shall reduce the sentence of five years and eight months which was imposed on D1 and D2 to a sentence of four years and eight months in each case. Once again, as in CACC 491/2001, this conclusion does not in any way affect the sentences of fifteen months' imprisonment, imposed at Tuen Mun Magistrates' Court, which were ordered to run consecutively.

25. Having been informed that D3 (Wong Lin-pan) in CACC 528/2001 did not seek leave to appeal, Mr Poon has, at our invitation, undertaken to ensure that D3 is notified by the Department of Justice of the outcome of today's proceedings with a view to encouraging him to make a late application.