HKSAR v. CHEUNG SIU WAI

CACC 426/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 426 OF 2003

(ON APPEAL FROM DCCC 777 OF 2003)

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J U D G M E N T

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1. On the 9 September 2003 the Applicant Cheung Siu-Wai pleaded guilty at the District Court to one charge of robbery and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. The victim of the robbery was a 70 year old man who had just finished relieving himself in a public toilet on the night of 31 May 2003. The Applicant had been in another cubicle in the toilet and had come out from that cubicle and pointed a knife at the victim. He demanded money from the victim who gave him $50.

3. The Applicant then left the public toilet, only to be intercepted by two police officers who happened to be patrolling nearby. Upon interrogation the Applicant admitted that he had entered Hong Kong illegally, and when the policemen searched him, they found a knife and a $50 note.

4. When the Applicant was being taken away by the police, the victim saw the Applicant and identified him to the police as the man who had robbed earlier.

5. The Applicant was brought to Court where on his plea of guilty he was sentenced to 3 years and 4 months imprisonment for the robbery charge and 15 months imprisonment for the unlawfully remaining in Hong Kong charge, the sentences to run consecutively, thus making a total of 4 years and 7 months imprisonment.

6. On 19 September 2003, the Applicant applied for leave to appeal against the sentences.

7. The grounds put forward for reduction of sentence are as follows:-

(i)	He said that the fruit knife that he had in his possession was a small one and did not pose a serious threat to the victim. The victim was not physically injured.
(ii)	The Applicant said that he had some sympathy for the victim because the victim originally had $70, but the Applicant returned $20 to the victim, thus taking only $50 from the victim.
(iii)	He said that having entered Hong Kong illegally, he was only hiding in the public lavatory in order to avoid the police. He had not entered the lavatory with an intention to rob any one.
(iv)	In mitigation, he said that his parents had passed away when he was small and he does not have any relatives or friends in Hong Kong who would visit him in prison here; and
(v)	he said that since he was imprisoned, he has joined a church group and had become a Christian. He now felt remorse for his offences.

8. I shall now deal with each of those grounds for reduction in turn. As far as the point of the size of the fruit knife is concerned, and the fact that no physical injury to the victim was caused, the law is that if the Applicant had caused physical injury to the victim, then a greater sentence would have been imposed. There are established guidelines in the courts of Hong Kong for sentences for robbery. In the case of Mo Kwong-sang v The Queen [1981] HKLR 610, the Court of Appeal held that the appropriate sentence in an ordinary case of robbery where the accused carried a knife, which he displayed to his victim, should be five years' imprisonment. If physical violence (including tying the victim up) was used, a sentence of 7 years would have been the starting point. Therefore, it was correct for the trial judge to have considered a starting point of 5 years' sentence of imprisonment for this robbery, where a knife (however small) was used and was displayed to the victim.

9. The trial judge applied the usual 1/3 reduction for a plea of guilty, and after taking off 1/3 of 5 years, arrived at the correct sentence of 3 years and 4 months.

10. As for the second point that the Applicant returned $20 to the victim, I do not accept that that is a mitigating factor. The Applicant could hardly say that he had sympathy for the victim when it was a cowardly act in the extreme to frighten an elderly man who was old enough to be the Applicant's grandfather.

11. As for the Applicant's assertion that he did not intentionally enter the lavatory to rob anyone, the fact was that having entered into the lavatory and having seen this elderly man, he did proceed to rob him.

12. As for the factor that he had no relatives or friends in Hong Kong and that his parents had passed away when he was small, the Applicant is now 24 years old and should be responsible for his own actions. It can only be hoped that, with the support of the church group in prison, when he is released from prison, he will be able to turn over a new leaf.

13. The sentence for unlawfully remaining in Hong Kong and the principle that the sentence for this charge should be served consecutively to any other sentence for another offence had been set out by the Court of Appeal in the case of HKSAR v Tong Fuk-sing [1999] 3 HKC 332. In that case the Court of Appeal held that the appropriate sentence for pleading guilty to unlawful remaining was 50 months imprisonment and this sentence should normally be imposed consecutively to the sentence imposed for other accompanying offences, unless there existed some compelling circumstances, such as strong humanitarian reason.

14. The sentence of 50 months' imprisonment to be served consecutively was precisely the sentence that the trial judge gave. I therefore do not find any circumstance in the present case which would entitle the Applicant to leave to appeal against the sentence. The application must therefore be dismissed.