HKSAR v. CHAU YIN CHEONG

CACC 558/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 558 OF 1999

(ON APPEAL FROM HCCC 170/1999)

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. On 2 November 1999, the applicant pleaded guilty before Deputy Judge Wesley Wong in the Court of First Instance to one count of robbery and one count of theft. For the robbery count, he was sentenced to 5 years and 4 months imprisonment and for the theft count he was sentenced to 1 year imprisonment, consecutive, making a total of 6 years and 4 months imprisonment.

2. The facts admitted by the applicant were that on 18 January 1999 at about 2:40 a.m. the applicant broke into the home of PW1 at Flat C 2/F., Block 12, No. 9, Shan Yin Road, Tai Po, New Territories. He hid himself in the store room. When PW1 went into the kitchen and store room to make the check, the applicant grabbed PW1 in the neck, pointed an iron bar at his throat and demanded money. When PW1 told him he had none, the applicant continued grabbing PWl's neck, dragged him to the sitting room. There, still holding PW1 by the neck, the applicant ransacked the premises. After finding some cash and other properties, the applicant fled. In the early hours of the following day, 19 January 1999, patrolling police officers saw the applicant get into a light goods vehicle parked by the roadside. The police officers later found him sitting in the vehicle. He was wearing a pair of workmen's gloves, and was searching for things in the vehicle. The driver of the vehicle was notified and he found that he had lost some coins and minor things from the vehicle. The applicant was then arrested for theft.

3. The applicant was an illegal immigrant and he had sneaked into Hong Kong only two days before he committed the robbery.

4. The Judge, in sentencing the applicant, considered that the applicant had used violence against the victim and had treated him in a most inhumane manner. The Judge took 8 years as the starting point for the robbery count. For the theft count, the Judge considered it an aggravating factor that the applicant committed the theft one day after he had committed the robbery. He adopted 18 months as a starting point. Discounting these two sentences by 1/3, he sentenced the applicant to a total of 6 years and 4 months imprisonment.

5. The first ground of appeal is that the Judge took too high a starting point for the robbery count. Ms Anita Ma for the applicant submitted that the applicant originally intended to burgle the place but the burglary turned into a robbery when the applicant alerted the victims. She submitted that the applicant did not bring any weapon into the premises and that he only resorted to violence by grabbing and dragging the victim when he felt terrified and tried to escape. She further submitted that the applicant had neither assaulted nor gagged or tied up anyone during the robbery. Ms Ma submitted that based on the guidelines of R v Mo Kwong-sang [1981] HKLR 610, the appropriate starting point should be one of 7 years imprisonment.

6. In our view, there was an invasion of residential premises at night. The violence used in this robbery was not minimal. PW1 was grabbed from behind in the neck and a metal bar was pointed against his throat. He was then dragged and grabbed while the applicant was ransacking the premises. The victim must have been terrified throughout this ordeal. It could not be a more traumatic experience for him. The case of Mo Kwong-sang states that if any violence is used on any of the victims, a sentence of 7 years should be considered and this sentence should be increased if there are other aggravating factors including invasion of domestic premises during the night and threats made to victims. In the circumstances of this case, the starting point of 8 years is no way manifestly excessive or wrong in principle.

7. As regards the starting point of 18 months for the theft count, Ms Ma submitted that there was no evidence that the applicant had prized open the victim's car and no damage had been caused to it. The value of the property stolen, Ms Ma submitted, was small and 18 months imprisonment as a starting point was manifestly excessive.

8. We do not think that the matters submitted by Ms Ma are of any assistance to the applicant. As the admitted facts suggested, the applicant was wearing workmen's gloves to prevent detection and he was also prepared to steal property from parked vehicles. This was the second offence he committed within the very short period of time after he had sneaked into Hong Kong. The Judge was entitled to take a serious view. 18 months starting point is nowhere near manifestly excessive.

9. On the question of totality, having regard to the fact that the applicant received a concurrent sentence in the magistrates court for his immigration offence for which the sentence would have been consecutive had the theft charge been brought at the same time before the magistrate, the total sentence of 6 years and 4 months after discount for these two separate offences of robbery and theft is also not manifestly excessive. The application for leave to appeal against sentence must be refused.