R. v. SUN SHEUNG CHUNG

1993, No. 152
(Criminal)

H E A D N O T E

The taking of bank account-operating material along with other property from a robbery victim is a considerable element of aggravation calling for additional punishment.

IN THE COURT OF APPEAL

1993, No. 152
(Criminal)

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J U D G M E N T

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Bokhary, JA (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence.

2. On April 1 this year, before Deputy Judge Chan in the High Court, this applicant pleaded guilty to one count of theft and one count of robbery. He was on the same day sentenced to one years' imprisonment for the theft and seven years' imprisonment for the robbery. Half of the theft sentence was made consecutive to the robbery sentence. The result therefore was a total sentence of seven and a half years' imprisonment.

3. The learned judge had adopted a starting point of nine years' imprisonment for the robbery.

4. Turning to the circumstances of the offences, they are these. The theft involved the insertion of a bamboo pole through a window into the victim's home and the extraction by means of that implement of property in the form of $16,400 in cash and a gold ring valued at $200 all contained in a leather waist wallet.

5. The robbery was far more serious. A woman, the victim, awoke in the early hours of the morning to find a masked man standing over her bed, armed with a chopper. There is no need to expand upon how terrifying that experience must have been for her. The facts speak from themselves. The masked man armed with a chopper was this applicant. A gold necklace, two gold rings and a gold bracelet as well as $430 in cash were taken from this unfortunate woman. It did not stop there. The applicant also took her bank cash withdrawal card, with which he later attempted, albeit without success, to extract money from her account. She was, before he parted company with her, tied to a chair and covered with a quilt.

6. The grounds of appeal against sentence have been drafted with commendable clarity and concision by Mr Percy for the applicant, and his able arguments have followed them accurately and closely. We propose therefore to recite those grounds. They read:-

"1. The Learned Trial Judge failed to have regard to the guidelines for sentences in Robbery cases set down by the Court of Appeal in MO Kwong-sang v. R. [1981] HKLR 610, 611 (CA) when he adopted a starting point of nine years imprisonment.

2. The sentence of seven year imprisonment for the Robbery Charge (count 3) was excessive. In accordance with the above authority, a sentence of seven years should be considered on conviction following a plea of not guilty and in circumstances where an armed robber invaded private premises and used some physical violence upon the victim, and where no credit can be given for any mitigating circumstances.

3. In all the circumstance the total sentence of 7 1/2 years was excessive."

7. Leaving aside the feature to which we will come in a moment, the sentence in the present case might be liable to reduction as being significantly and unjustifiably in excess of the result to be arrived at by an application of the guidelines laid down in the case mentioned in the first ground of appeal, which we have quoted.

8. The feature to which we now come is this. There was, as we have noted, the taking from the victim of her bank cash withdrawal card. Where bank account-operating material is extracted along with other property, then this is the position. First, the potential for loss of the victim is increased, possibly very considerably. Secondly, the potential for gain to the criminal is correspondingly increased. Thirdly, the sense of violation suffered by the victim is, it is not difficult to imagine, heightened. And, fourthly, the period and scope of the criminal activity involved is extended.

9. This "bank account" feature, as we will term it, is appearing with mounting and alarming frequency in robbery offences against householders and others. The time has come to warn malefactors - and this warning will become more and more firm as time passes if this sort of things continues unabated. Such a feature is a considerable element of aggravation; and it will attract additional punishment as a result.

10. In the circumstances, the sentence passed by the learned judge cannot be interfered with, because it was not one moment too long. The application for leave to appeal is dismissed.