HKSAR v. TANG KAI HI

CACC 531/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 531 OF 1999

(ON APPEAL FROM DCCC 661 OF 1999)

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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):

1. On 27 September 1999, the Applicant pleaded guilty to robbery in the District Court before Judge Muttrie. He was sentenced to 3 1/2 years' imprisonment. The Applicant now seeks leave to appeal against sentence.

2. The facts reveal a cowardly attack on a 17-year-old girl as she walked to the KCR station near Tai Po Market by herself during the hours of darkness on 29 June 1999. She was carrying her handbag and two pieces of luggage. As she walked along a pedestrian subway near the station, she was suddenly hit on the head by a hard object. This was later found to be a brick inside a polythene bag. She felt great pain and was next aware of someone grabbing her neck from behind with one hand and snatching her bag with the other. She shouted out and fell to the ground with the Applicant. The Applicant continued to try to take possession of the victim's handbag and she called out "Robbery". These events resulted in two passers-by (PW2 and PW3) seeing what was happening and they came to the victim's rescue.

3. PW3, a lady by the name of Poon Sin-man, called the police and gave assistance to the victim whose head was bleeding. Meanwhile, PW2, a man by the name of Wong Chi-keung, chased after the Applicant who was leaving the scene of the crime with the victim's handbag. Mr Wong was able to make a citizen's arrest of the Applicant who was still in the subway. The Applicant begged to be allowed to go and volunteered to return the victim's handbag. He then tried to escape but Mr Wong prevented him from doing so. The victim then came to the place where the Applicant was being held and Mr Wong returned the handbag which the Applicant had stolen and gave it back to the victim. Again, the Applicant asked to be released claiming that he had only done this because he had no money for food. Mr Wong held onto the Applicant who had again begun to struggle. The Applicant was pushed against the wall. While the police were awaited, the Applicant at one time nearly managed to escape, but Mr Wong and another member of the public eventually subdued him until police arrived.

4. The Applicant admitted what he had done to the police. The victim was taken to hospital where she received two stitches to her head wound.

5. In a later interview, the Applicant added that he had been unemployed for a long time, that he felt remorseful and that he had found the brick and the bag at the roadside near the subway.

6. In his grounds of appeal, the Applicant complained that he had been dealt with too severely for someone who had confessed all along to the crime. He reminded us in his written grounds of his previous good character, that he is now 44 years old, and that a number of documents bear out the fact that he has in the past participated in community service to the benefit of the general public. He also told us about his desire to support his wife who is about to give birth. In addition, he has to maintain his two daughters from his first marriage and this has added to his financial difficulties.

7. Today in court, he has repeated much of what he set out in his written grounds and we have seen three letters which relate, in one way or another, to the public service he has rendered in the past. None of these factors can be of much assistance to the Applicant in the light of the grave offence he committed.

8. In passing sentence, we notice that the judge took a starting point of six years' imprisonment which he then reduced, to take into account the plea of guilty, to four years' imprisonment. In doing so, he correctly applied the guidelines in R v Mo Kwong-sang, (1981) HKLR 610, for a robbery case in which a dangerous weapon had been used to inflict physical violence.

9. In the circumstances, where violence of this kind has been used by the offenders, the judge could have considered a starting point of seven years, and the original starting point of six years cannot be criticised as manifestly excessive. Indeed, to some extent the Applicant is in agreement because he told us in court today that he did not disagree with the sentencing remarks made by the judge in the District Court.

10. However, in arriving at the eventual sentence of 3 1/2 years, the judge gave further credit to the extent of 6 months for good character which, as the judge also said, took into account the public service rendered by the Applicant. We consider that this was far too generous. In Mo Kwong-sang, this court made it plain that "little account can be given to the previously clear record of anyone who takes part in an 'armed robbery'." In cases of this gravity, the discount of one-third should usually, as we have said before, be regarded as the high watermark of the discount to be accorded to those who enter timely pleas of guilty.

11. In the circumstances, the sentence imposed was lenient and the application is dismissed. It was an application that was wholly without merit and, accordingly, we shall order that four months of the period spent by the Applicant in custody shall not count towards his sentence.

12. Before passing from this application, we take note of the public spiritedness of the two persons who came to the rescue of the victim who had been subjected to this most unpleasant attack. Poon Sin-man, the female passer-by, raised the alarm by calling police and assisting the victim thereafter with her head injury. In particular, because of the courage it involved, the male passer-by, Wong Chi-keung, is deserving of high praise for his courageous actions in capturing the violent culprit responsible for this robbery. We would be grateful if this commendation, which is intended as a mark of public appreciation, could be brought to the notice of the two persons in question. Indeed, it is unfortunate that such a commendation was overlooked in the court below.