HKSAR v. LAM HOI

CACC 105/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 105 OF 2016

(ON APPEAL FROM HCCC 63 OF 2016)

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J U D G M E N T

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

1.  On 29 January 2016 in the Eastern Magistracy the appellant pleaded guilty to three counts of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210. On 6 April 2016, the appellant appeared before Deputy High Court Judge Wilson Chan (“the judge”), as he then was, and was sentenced by him to a total of 6 years and 4 months’ imprisonment.

2.  The appellant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his sentence and on 20 October 2016 leave was granted by the single judge.[1]   

3.  At the hearing of the appeal we reserved out judgment which we said we would hand down at a later date.  This we now do.

The background to the offences

4.  The Summary of Facts which was admitted by the appellant for the purpose of his sentencing revealed that the appellant was aged 18 and 10 months at the time of the offences.  The three robberies occurred on three consecutive days: 23, 24 and 25 July 2015 respectively, in three different “7-Eleven” convenience stores in Fanling. 

5.  The first offence occurred at around 23:30 hours on 23 July 2015.  The appellant, wearing a face mask, entered the “7-Eleven” store at Shop No 22, Ground Floor, Regentville Shopping Mall, No 8 Wo Mun Street, Fanling.  He took out a can of Tsingtao beer from the refrigerator.  After loitering around inside the store for a while, he went to the checkout counter and presented the can to a staff of the store, Mr Chan (PW1), ostensibly to pay for it.  Suddenly, the appellant produced a knife, which was about 8 inches long, and pointed it at PW1’s stomach.  The knife was about 15 centimetres away from PW1.  The appellant then announced “Robbery, quick take all the money out” and ordered PW1 to put all the money inside a recycle bag which the appellant had with him.  PW1 did so, and the appellant fled the scene.

6.  PW1 later discovered that the appellant had taken away HK$1,340 in addition to the can of beer worth HK$14.50.

7.  The second offence occurred at around 03:45 hours on 24 July 2015, just over 4 hours after the first offence.  The appellant, wearing a face mask, entered another “7-Eleven” store at the Ground Floor of Louver Mansion, Nos 9-11 Luen On Street, Fanling.  The appellant then proceeded to the check-out counter of the shop and handed over a bottle of Pocari water and a box of Ricola throat drops to a staff of the shop, Mr So (PW2), who told the appellant the amount he had to pay. 

8.  The appellant suddenly produced a 8-inch-long knife from a recycle bag that he had with him and pointed it at PW2’s head. PW2 noticed the knife was very near to him.  The appellant said “Robbery” and “Open the cabinet” but PW2 said that he did not know how to open it.  The appellant replied that he had robbed nearby and said, “Don’t you believe that I will stab you?”  PW2 was very afraid and he alerted his colleague, Madam Mah (PW3), who was at the storehouse area of the store. 

9.  Madam Mah reported the matter to the police and then came and shouted at the appellant, “What are you doing?  I have called the Police.”  After leaving the store, the appellant momentarily returned and, referring to his recycle bag, he said to PW2 “Pick up the bag for me.”  PW2 handed to appellant the recycle bag and he then left the scene.

10.  The only loss sustained by the store at Luen On Street was the box of throat drops valued at HK$6.50.

11.  The third offence occurred the next day, on 25 July 2015, at around 18:24 hours.  The appellant entered the third “7-Eleven” store at Ground Floor, Wing Hay Court, No 9 Wo Fung Street, Fanling, again wearing a face mask.  He took a cuddly ‘Chopper’ doll with gumdrop, valued at HK$49.90, a bottle of Bonaqua mineral water, valued at HK$7.50, a roll of gumdrops valued at HK$11.90 and one packet of Marlboro cigarettes, valued at HK$55, and handed them to a staff of the store, Madam Lau.  The total amount of these goods was HK$124.30 

12.  After Madam Lau scanned the items, the appellant produced a knife, which was about 12 inches long, and declared “Robbery”.  He ordered her to take out all the money from the cash register and place it inside a recycle bag which he had brought with him.  Madam Lau was frightened and did as she was told.  After the money was placed inside his recycle bag the appellant left the scene.

13.  Madam Lau later checked and found out that the appellant had taken away cash of HK$6,760.  Together with the goods stolen, the total loss suffered by the store was HK$6,884.30.

14.  All three robberies were captured by CCTV.  Some items of the stolen properties were retrieved from the appellant’s residence but none of the cash monies were recovered. 

15.  The appellant left Hong Kong at 19:19 hours on 25 July 2015.  How he came to be arrested was described in the Summary of Facts as follows:

“He was arrested for his involvement in the first robbery in the afternoon of the 3.8.2015 when he returned to Hong Kong via the Lo Wu Control Point.”

16.  In a subsequently conducted video record of interview, the appellant confirmed his admissions to all three robbery offences.

17.  He was subsequently positively identified by the victims of the robberies in an identification parade conducted on 5 August 2015.  The appellant also assisted the police in their investigation by showing them the clothes he wore during the robberies, the location where he discarded certain items and the shops where he bought the 12” knife used in the third robbery and the recycle bag.

The mitigation

18.  Counsel for the appellant, Mr KH Suen, informed the judge of the background of the appellant who was aged 18 at the time of his arrest, had a clear record and had received education up to form 4 level.  His father had died when he was 10 years of age.  He had worked as a trainee cook in 2014 and as a truck attendant in 2015.  Defence counsel submitted that the appellant had pleaded guilty at the first opportunity and had been fully cooperative with the police since. 

19.  His counsel explained the motive for the robberies arose from the appellant meeting a girl on the internet who had complained to him that she had been deceived by an ex-boyfriend of all her money, was behind in payment of her rent and needed HK$10,000.  The appellant wanted to help her but lacking the money to do so turned to robbing the 7-Eleven stores as a means of obtaining the monies.  When he went to China he transferred the proceeds of the robberies to this girl’s bank account but as soon as he had done this, she cut off all communication with him.  The appellant then realised that he had been cheated.

20.  In respect of the robberies themselves, his counsel said that the appellant never had any intention to hurt anyone and had committed the offences out of stupidity.

21.  In support of his claim that the appellant was remorseful and hitherto of good character, his counsel produced to the court letters written by the appellant’s mother, brother and a District Councillor. The mother said in her letter:

“Regarding this incident, Lam Hoi knows that the case is serious. He knows he has done something wrong and is deeply regretful. He was willing to face the misdeeds bravely and came back to Hong Kong to surrender himself. He took the responsibilities for the matter and will not re-offend.” (Emphasis added.)

22.  In respect of the mother’s claim that the appellant had surrendered to the authorities, the judge queried whether that was so and the following exchange then took place:

“COURT:	It’s stated in the letter that the defendant returned to Hong Kong to give himself up.
MR SUEN:	Yes.
“COURT:	That is not, in fact, factually correct, is it? Because in paragraph 21 of the admitted facts it’s stated that he was arrested when he returned to Hong Kong.
MR SUEN:	Yes.
“COURT:	So he didn’t surrender himself to the authorities.
MR SUEN:	Well, actually the – no, no, not exactly, not in that sense. What happened was the mother went to China and asked him to come back.
“COURT:	But he didn’t surrender himself.
MR SUEN:	No, no, no, not in the sense that he surrendered himself to the police. The mother went to China and asked him to come back to face the music.
“COURT:	Yes.”

23.  After referring to the three letters, the appellant’s counsel then submitted that the judge should extend leniency to the appellant when adopting his starting point.  The judge then asked counsel if he had any submission as to the proper starting point and counsel replied that for the offence of robbery it was as laid down in the Court of Appeal’s decision in Mo Kwong Sang v R[2], namely, 5 years’ imprisonment.  The judge then queried with counsel whether that was so as a convenience store was a business premises and for such premises the starting point should be 6 years’ imprisonment.  He was here referring to the following passage in Mo Kwong Sang where Roberts CJ, in giving the judgment of the Court of Appeal, said at page 611F:

“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 6 years would be appropriate.”

24.  The judge then expressed the view that “the description ‘private premises’ clearly involves business premises in contradistinction to public places like, on the streets.”

25.  The appellant’s counsel argued that “business premises” referred only to places like a private office but not to places where the public have access, like a shop.  However, the judge was not persuaded and said he would adopt 6 years’ imprisonment as his starting point.

26.  The judge then queried with the appellant’s counsel whether it was an aggravating feature that the premises being robbed were all convenience stores and in this respect the judge referred to the judgment of the Court of Appeal in HKSAR v Kwok Cheuk Man[3]. The appellant’s counsel argued that if the judge adopted a 6 year starting point on the basis that a “business premises” included a shop then no further enhancement was justified.

The judge’s Reasons for Sentence

27.  The judge referred to the facts underlying each of the offences and when he described how the appellant came to be arrested he did no more than paraphrase what was contained in the Summary of Facts as to the appellant being arrested at the Lo Wu Control Point when he returned to Hong Kong.  He made no mention of the appellant’s claim that he had voluntarily returned to Hong Kong in order to surrender himself to the police.  In respect of the three mitigation letters that had been handed to him, the judge simply said that their contents “have been duly noted.”

28.  He referred to the personal circumstances of the appellant and his motive for committing the offences but went on to say:

“However, as against the defendant’s personal background and circumstances, I have to bear in mind that the offences committed by the defendant are serious offences which call for deterrent sentences as has been held by Court of Appeal in cases which I am going to refer to below.”

29.  The judge then quoted from Mo Kwong Sang v R and the part he quoted included the passage dealing with a starting point of 6 years’ imprisonment for an invasion of private premises, which includes business premises.  He then went on to say that he regarded it “as an aggravating factor, that the robberies all took place at convenience stores.” He referred to HKSAR v Kwok Cheuk Man[4] and said:

“… places such as petrol stations and convenience stores that are open round the clock are susceptible to robbery and have to be protected. A deterrent sentence is warranted for those who rob these places.”

30.  The judge said that in the circumstances of the present case he would adopt a starting point of 6½ years’ imprisonment for each of the three counts of robbery.

31.  After affording the one-third discount for the guilty plea the resulting sentences for each offence became 4 years and 4 months’ imprisonment.  The judge then said:

“However, bearing firmly in mind the totality principle, I am of the view that the proper sentence in this case should be one as to ensure that the defendant serves a sentence in all of 6 years and 4 months’ imprisonment.”

32.  To achieve this result, the judge ordered that:

(i)      3 years and 4 months of the sentence for the 2^nd count run concurrently with that of the 1^st count, with 1 year to run consecutively; and

(ii)     3 years and 4 months of the sentence for the 3^rd count run concurrently with those of the 1^st and 2^nd count, with 1 year to run consecutively.

The Perfected Grounds of Appeal Against Sentence

33.  The appellant relied on five grounds of appeal. His first ground of appeal asserts that            given the appellant’s age and clear record the judge erred in not calling for pre-sentencing reports so as to consider other sentencing options.

34.  The second ground of appeal complains that the judge failed to have regard to the fact that the appellant decided to return to Hong Kong to shoulder his responsibility which was akin to turning himself in to the police.

35.  The third ground of appeal asserts that the judge erred in regarding the fact that the robberies took place in convenience stores as an aggravating factor by reference to Kwok Cheuk Man.

36.  Alternatively, it is argued that the judge erred in double counting by applying Mo Kwong Sang and taking into account that the robberies were committed at places which were private premises as an aggravating factor, and then further taking into account that the robberies took place in convenience stores as an additional aggravating factor by reference to Kwok Cheuk Man.

37.  The fourth ground of appeal complains that the starting point of 6½ years’ imprisonment was too high and the fifth ground of appeal that the sentence is, in all the circumstances, manifestly excessive.  

38.  Counsel for the appellant, Mr Andy Hung, submitted in respect of the first ground that for a youthful offender, under certain circumstances, Detention Centre and Training Centre could be suitable even for robbery cases.  However, he said that as the appellant had already served 1 year and 4 months of his sentence within the prison system he would not ask this court to obtain reports with a view to substituting for the sentence of the judge an order that that the appellant be detained in a Detention Centre.  Rather, he would ask this court to replace the sentence of the judge with a sentence that would come to 3 years’ imprisonment as this would then be comparable to the period that the appellant would have spent in a Detention Centre.

39.  In support of his second ground of appeal, the appellant filed a notice of motion and affirmations by himself and his mother Huang Hai Min, by way of an application for leave to adduce new evidence on appeal under section 83V of the Criminal Procedure Ordinance, Cap 221.

40.  In his affirmation the appellant explained how he became acquainted with a girl through the internet who requested him to lend her RMB8,000 for payment of her arrears of rent.  The appellant agreed to lend her RMB4,000 but had no savings to do so.  As neither his mother nor his friends would lend him money, he decided, out of desperation, to rob the convenience stores. 

41.  After the robberies, he went to Shenzhen to deposit money into the bank account of the girl through an ATM machine.  He had been in contact with the girl by phone but after the money was deposited, he could no longer contact her and found that her identity on the internet had been deleted. He then realized he had been cheated.  He was depressed and thought of committing suicide. 

42.  Between 25 July and 1 August 2015, he spent his days in an internet café and there his mother found him.  His mother told him that the police had attended their home to look for the appellant and she tried to persuade him to return to Hong Kong.  On 3 August 2015, he finally agreed to return and surrender to the police.  At Lo Wu, he was intercepted by the officers of the Immigration Department and was handed over to the police.

43.  In her affirmation, Madam Huang said that on 3 August after the appellant agreed to return to Hong Kong she set off to Shenzhen so that she could accompany him on his return journey.  She said that when she arrived at Shenzhen she called the CID team of Tai Po Police Station and informed them that she was accompanying the appellant who was returning to Hong Kong in order to own up to the police.  When they were crossing the border, they were intercepted by Immigration Officers and handed over to the police.

The respondent’s submissions

44.  The respondent objected in principle to the new evidence on the basis that it was not new and was available at trial, quite rightly pointing out that the sentencing hearing was the proper occasion for it to be adduced. Nevertheless, counsel for the respondent Mr Pierre Lui, Senior Public Prosecutor (Ag), very fairly and quite properly, conceded that the claim by the mother that she contacted the Tai Po police was correct.  In his written submissions he accepted that:

“By returning to Hong Kong knowing he was a wanted person, there is strength in the submission that the appellant’s act is akin to turning himself in to the police.”[5]

45.  By reference to precedent sentencing cases, Mr Lui examined the global starting points that had been adopted in cases involving multiple robberies.  He concluded that the starting point of 6.5 years which the judge adopted and the global starting point of 9.5 years, which is derived by calculating backwards from the final total sentence of 6 years 4 months’ imprisonment, “may be on the high side.”[6]

Discussion

46.  Given the approach now being taken by the appellant in respect of his first ground of appeal, there are only three issues that arise for our determination.  The first is whether the judge should have allowed the appellant a further discount in sentence for his return to Hong Kong and surrender to the police.  The second is whether the starting point is too high and if it is whether that is the result of the judge misunderstanding what was said in Mo Kwong Sang.  The third issue is whether, as a consequence of the first two issues or otherwise, the final sentence is manifestly excessive.

47.  In respect of the first issue, we have had the benefit of the affirmation of the mother and the confirmation of Mr Lui that the police were in fact expecting the appellant to return to Hong Kong for the purpose of surrendering to them.  This was not information made known to the judge but it should have been.  Once it appeared that the judge may not have had a complete and accurate understanding of the facts, greater effort should have been made by the appellant’s trial counsel (not Mr Hung) to correct any factual misunderstanding under which the judge may have been labouring.  If necessary, the appellant’s counsel could have enlisted the aid of the prosecutor to confirm, as Mr Lui did not hesitate to do with us, that this had been nothing less than a true and genuine surrender by the appellant to the police.   

48.  We are satisfied that we should receive the new evidence under section 83V(1) of the Criminal Procedure Ordinance, Cap 221 notwithstanding that it was available at the sentencing hearing and that no reasonable explanation has been advanced as to why it was not adduced at that hearing. The latter condition is contained in section 83V(2) but it does not limit our discretion under section 83V(1) once we conclude that it is necessary or expedient in the interests of justice to receive the evidence, that the evidence is admissible and that it would afford a ground for allowing the appeal.[7]

49.  Having received the evidence we are satisfied that the appellant was entitled to an additional discount for his voluntary surrender to the police.  We shall return to the quantum of such a discount at the end of this judgment.

50.  The next issue is the judge’s starting point.  In reaching a 6.5 years’ imprisonment starting point the judge treated the shops as business premises and so took an initial starting point of 6 years and then enhanced it by 6 months to allow for the aggravating factor of the shops being of a particular type, namely convenience stores.  We are satisfied that in adopting this approach the judge erred.

51.  The 6 year starting point laid down in Mo Kwong Sang was for robberies involving “an invasion of private premises”.  The additional words which immediately follow in brackets “which includes domestic and business premises and the common parts of premises such as lifts and staircases” were intended to extend the description of private premises in two ways. 

52.  The first was to extend it to the public areas of such premises such as lifts and staircases.  This is simple common sense when the bulk of the Hong Kong population live in high-rise apartment buildings and when robberies in lifts have, at times, been quite common.  The second way was to extend it to business premises and this raises the question of whether, in so doing, it was intended to include all business premises.  That is not what we understand it to include.  The word “premises” was qualified by the word “private” and we take this to have been deliberately done in order to narrow the type of premises to which the Court of Appeal was referring.  Furthermore, requiring that the premises must be private in character is consistent with the conduct that is being made an aggravating factor; namely, the “invasion” of these premises.  To be capable of being invaded, the premises must be premises to which the public do not have a general invitation to enter.  Only those which are not open to the general public and which operate with a degree of privacy and security, are capable of being invaded.  Shops, which are open to the general public, are not capable of being invaded as the public enjoy a general invitation to enter them.

53.  The judge should simply have enhanced the Mo Kwong Sang basic guideline of 5 years’ imprisonment to allow for the aggravating factor of the premises being convenience stores.

54.  We are not aware of any case which has said what the quantum should be for this aggravating factor.  However, the comments of the Court of Appeal in Kwok Cheuk Man were restated by the Court of Appeal in HKSAR v Wong Cheung[8] where at page 179, paragraph 16, Yeung JA, as Yeung VP then was, said in giving the judgment of the court:

“This Court has once emphasised in a case of similar nature, that convenience stores are open 24 hours and in general, carry large amounts of cash, thus are very tempting to robbers. In such circumstances, the offence of robbing a convenience store is akin to the offences of robbing a bank, a goldsmith shop or other shops which carry large amounts of cash; heavy deterrent sentences are called for so as to prevent these shops from falling prey to robbers easily.”

55.  The strength of these comments provide some guide to the level of enhancement to be made to take account of this aggravating factor.  However, important as this aggravating factor is, sight must not be lost of the important qualification which Roberts CJ made to the Mo Kwong Sang guideline, when he said at page 611H-I:

“Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

56.  Taking account of all the circumstances of this case, including the number of robberies committed, we are satisfied that a final starting point of 6 years’ imprisonment is appropriate for this appellant.  However, we should emphasise that because we have tailored this degree of enhancement to the circumstances of this case it should not be taken in any way as a norm for this aggravating factor.   

57.  It is clear therefore that the judge has erred in respect of both the issues of a discount for surrender and the adoption of a starting point, so it now falls to us to sentence the appellant afresh.

58.  As we have said, we would adopt a starting point of 6 years’ imprisonment and when that figure is discounted by one-third to allow for the appellant’s guilty pleas the sentences for each offence become 4 years’ imprisonment.

59.  A further discount must then be awarded to the appellant to reflect his surrender to the police.  Surrender to the authorities can take a number of different forms, each of which may be of a different mitigating value.  The form of surrender that has the greatest mitigating value is that which is accompanied by a confession by an offender of an offence not known to the police.  The next level would be where an offender confesses to the police in respect of a known offence which has not been linked to him.  At the lowest level is an offender who is within the jurisdiction and who is being actively sought by the police but who the police have not been able to apprehend. Somewhere within this range is the offender who, like this appellant, returns to the jurisdiction to surrender to the police who are seeking him for an offence they can prove he has committed.  In our view the mitigating value of this form of surrender falls towards the lower end of the range and we would allow only a further discount of 4 months for this mitigating factor.  This makes a final sentence for each offence of 3 years 8 months’ imprisonment.

60.  As each offence represents additional culpability of the appellant, the sentences could, in principle, be made consecutive, subject to the overriding application of the totality principle.  Clearly this principle would prevent orders being made for the sentences to run wholly consecutively.  So the issue then becomes how much of each of the sentences for the second and third offences should be ordered to run consecutively to the sentence for the first offence in order to achieve an overall sentence that is both fair and just.    

61.  On this question, we have been greatly assisted by the submissions of Mr Lui.  He has referred us to a number of similar cases involving multiple robberies and calculated the global starting points adopted in those cases. The cases to which he referred us are HKSAR v Chan Pak Hung[9], HKSAR v Choi Ka Kin Seraphim[10]and HKSAR v Muhammad Waqas and anor[11].

62.  In the Chan Pak Hung case, which involved two separate robberies of convenience stores committed by an 18 year old in the company of another for the first offence and in the company of two others for the second offence, a global starting point of 8 years 3 months was adopted. 

63.  In the Choi Ka Kin Seraphim case, which involved six robberies of convenience stores by a 20 year old who committed all but one of the robberies in the company of another, the Court of Appeal said that a global starting point of 9 years’ imprisonment was appropriate.

64.  In the Muhammad Waqas case, which involved an 18 year old appellant who had committed two robberies of the same convenience store and the same female victim in the company of another, the Court of Appeal adopted a global starting point of 9 years’ imprisonment.

65.  As Mr Lui very fairly pointed out, all these cases involve robberies more serious in their commission than the present case.

66.  In the present case, the judge’s final total sentence of 6 years 4 months’ imprisonment reflects a global starting point of 9.5 years’ imprisonment.  This, we are satisfied is, for the circumstances of this appellant’s overall culpability, excessive.

67.  In our view, after having had regard to the authorities to which we have been referred, a global starting point of 8 years’ imprisonment is appropriate to reflect this appellant’s overall culpability.  When that is discounted by one-third the sentence becomes 5 years 4 months’ imprisonment.  When that sentence is further reduced by 4 months to take account of the appellant’s surrender to the police, the final sentence become 5 years’ imprisonment.  That, in our view, is a fair and just sentence for the overall culpability of this appellant and that is the sentence that should be achieved by ordering that parts of the second and third sentences be served consecutively.

Conclusion

68.  For these reasons we allow the appeal, set aside the sentences of the judge and in their place impose upon the appellant sentences of 3 years 8 months for each offence and a total sentence of 5 years’ imprisonment.  To achieve that total sentence of 5 years’ imprisonment, we order that 6 months of the sentence for the 2^nd count and 10 months of the sentence for the 3^rd count be served consecutively to the sentence for the 1^st count.

[1] McWalters JA

[2] [1981] HKLR 610

[3] [2005] 3 HKLRD 698

[4] [2005] 3 HKLRD 698, at paragraph 31.

[5] Paragraph 10 of the Respondent’s Supplemental Submissions.

[6] Paragraph 15 of the Respondent’s Supplemental Submissions.

[7] See R v Tam Chung Shing & ors [1989] 1 HKLR 42 at 47G-I.

[8] [2011] 5 HKLRD 171

[9] CACC404/2006, unreported, 18 May 2007.

[10] CACC377/2012, unreported, 26 April 2013.

[11] CACC392/2012, unreported, 12 July 2013.