HKSAR v. HAU KIN

CACC 99/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 99 OF 2000

(ON APPEAL FROM HCCC 6 OF 2000)

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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 3 March 2000, the Applicant (D2 in the court below) confirmed, before Deputy Judge Longley in the Court of First Instance, the pleas he had earlier tendered in committal proceedings to five charges all of which were related to robbery. There were three counts of robbery, one count of assault with intent to rob and one count of attempted robbery. In the result, D2 was sentenced to nine years' imprisonment against which he now seeks leave to appeal. D1 was in precisely the same position and received exactly the same sentence. In his case, he notified the court in writing that he had abandoned his application for leave to appeal against his sentence.

2. The judge, in his comprehensive summary of the facts when passing sentence, set out the circumstances with great accuracy and care. In brief, he described the charges as having arisen out of three separate incidents which took place on two consecutive days, 31 August and 1 September 1999. The first two incidents occurred in the same village in Tsuen Wan. The third incident occurred in a different village in the same area.

3. In the first incident, the subject of charges 1 and 2, a mother and her nine-year-old daughter discovered D1 and D2 in their home when they came back from a shopping expedition. Either D1 or D2 grabbed the daughter and D2 threatened both mother and daughter with a knife which he had picked up on the premises demanding that the mother should give him all the money that was in the house. The daughter was specifically threatened with a knife in order that her mother would open up the drawers for the robbers.

4. A neighbour who came to the house during these events was grabbed and taken into the house. All three of the victims were then made to squat down with their heads to the floor for about half an hour, guarded by either D1 or D2, one of whom pointed a knife at them while the other ransacked the premises. The neighbour was kicked on the head and hit on the left cheek when he at first ignored the instructions that he was given.

5. The second incident, which is the subject of charge 3, occurred on the following day at the home of a Mr Ho and his family. The same two men entered the premises. D1 or D2 was holding a knife and the other held a stick. The two men demanded money. During the course of the robbery, Mr Ho was punched in the chest twice by the robber holding a knife and then the knife was pointed at his neck. Mr Ho, his wife and their very young daughter were then covered over with a quilt. They were forced to remain under the quilt for almost an hour and a half until Mr Ho was told to go to the bank to withdraw money. He was threatened that, if he did not do so, his wife and daughter would be killed. He complied and returned with $4,000. Even then, D1 and D2 did not leave the premises until some four hours after they had first entered.

6. In the third incident, which is the subject of charges 4 and 5, at about 10.30 p.m., D1 and D2 entered the house of a Mr Lam and his family. Both men on this occasion were armed with knives. One of them also had an iron rod. The occupants of the house were guarded by D1 while D2 went to neighbouring huts threatening the occupants at knife point and then leading them to Mr Lam's premises. All the victims were ordered to empty their wallets.

7. D1 and D2 were not satisfied with the amount they obtained because they said they wanted at least $50,000. Two of the victims were then told to go to the ATM machine to withdraw $12,000. They were threatened that they should not report the matter or other victims would be killed. However, they did notify another person while they were away from the premises and the matter was then reported to the police. The police did not arrive until after the two victims returned with the $12,000 and had handed it over to the robbers. By then, D1 and D2 had left with the money.

8. Five of the nineteen people kept hostage in Mr Lam's hut were children. A number of the victims were assaulted including a ten-year-old boy. D2 inflicted a small stab wound on the arm of one of the victims when he was taking his wallet. The ordeal of these victims lasted over an hour and a half. As the judge put it:

"Each of these three incidents involved a prolonged and terrifying ordeal for your victims. In each case a knife or knives was used to threaten them. Even in incidents when only one knife was used the circumstances make it abundantly clear that the person among you who was not holding the knife was aware and party to the use of the knife by the other.

In each case violence was inflicted on one or more of your victims. As I have said in the last incident one of your victims even received a small stab wound. In each instant young children were among your victims. As I have said in the last incident violence was inflicted on a ten-year-old boy. In the last two incidents there were threats to kill your victims.

Each incident involved the invasion of peoples' homes. In the case of the last incident it was during the night. As I have said in the last two cases victims were held hostage while others went to a bank or an ATM machine to get money."

9. The judge drew no distinction between D1 and D2. He took a starting point of eight years' imprisonment for the robbery and assault with intent to rob in charges 1 and 2 (the first incident). The judge described the robberies in the second and third incidents as having involved an additional serious feature in that some victims were held hostage while others were sent to obtain money from a bank or ATM machine. Death threats were uttered. In his view, the appropriate starting point for these robberies was a sentence of nine years' imprisonment on each. In all the judge considered thirteen and a half years to be the appropriate sentence after trial for the criminality involved in all the offences.

10. In addressing D1 and D2, the judge finally said:

"You have no previous convictions in Hong Kong but you had only arrived one or two days before. I have taken into account your plea of guilty at the first opportunity and will give you the usual discount.

You, Hau Kin (D2), were the younger of the two men. You were identified by a number of victims as the person who inflicted force on them. And you threatened the little girl with a knife in charge 1. You again had no previous convictions in Hong Kong but like Cheung Man Chung (D1) you had only recently arrived from China. I give you the usual discount for your plea of guilty at the earliest opportunity.

The following are the sentences that I pass on each of you:

On Count 1, I sentence you to five years' imprisonment.

On Count 2, I sentence you to five years' imprisonment to run concurrently with the sentence on Count 1.

On Count 3, I sentence you to six years' imprisonment, two years of which are to run consecutively to the sentences on Counts 1 and 2.

On Count 4, I sentence you to six years' imprisonment, two years of which are to run consecutively to the sentences on Counts 1, 2 and 3.

On Count 5, I sentence you to six years' imprisonment to run concurrently to the sentence on Count 4, but consecutively to the sentences on Counts 1, 2 and 3.

Making a total sentence of nine years' imprisonment."

11. The ambiguity in the sentence imposed on Count 5 is fortunately cured by the final sentence in what the judge had to say.

12. D2, aged 20 at the time of his conviction, did not see fit to provide us with any written reasons for his application and in court has added nothing which is material to the application. We are in no doubt that the judge's sentence was entirely appropriate.

13. Accordingly, this application is dismissed. It was without the slightest merit and we order that three months of the time spent by D2 in custody will not count towards the nine-year sentence he is serving.