SECRETARY FOR JUSTICE v. LAU TSZ CHUN

CAAR 3/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 3 OF 2000

(ON APPEAL FROM HCCC 30/2000)

__________________

______________

J U D G M E N T

______________

Hon Leong JA (giving the judgment of the Court):

1. This is an application by the Secretary of Justice ("Secretary") for review of the sentences passed on the respondent Lau Tsz-chun.

2. On 14 April 2000 the respondent pleaded guilty in the Court of First Instance to 2 counts of robbery (the 1st and 4th counts) and 2 counts of theft (the 2nd and 3rd counts). He was sentenced to 4 years imprisonment on the 1st count, 2 years imprisonment each on the 2nd and the 3rd counts and 4 years imprisonment on the 4th count. The sentences on the 1st, 2nd and 3rd counts are concurrent and one year of the 4-year sentence on the 4th count was ordered to run consecutively to the sentences on the other counts. The total sentence was 5 years imprisonment.

3. The facts as admitted by the respondent were these:

On the morning of 20 May 1999 the respondent arranged to meet his friend Wong. After they met, they agreed to commit robbery. At about 7.30 am that morning, they saw PW1 a 59 years old construction worker walking along Hing Ning Road, Kwai Chung. The respondent and Wong approached PW1 and hit him on the head with a hard object. As a result PW1 fell to the ground and lost his consciousness. The respondent and Wong then took PW1's watch, gold ring, gold bracelet and gold necklace with a total value of $39,500. They also took his bag which contained his wallet with cash $1,600, identity card, six bank cards and driving licence before they went away. PW1 was later found lying unconscious on the ground by a passer-by who reported to the police. Dr Mo of Princess Margaret Hospital found PW1 suffering from cerebral concussion with loss of consciousness. He had 2 cm laceration on the scalp and a 2 cm laceration on the left eyelid.

The respondent and Wong subsequently went to the automatic teller machine ("ATM") at the self-service station of the Hong Kong Bank at City Landmark in Tsuen Wan and using the Hong Kong Bank Visa Credit Card which they had taken from PW1, they made two withdrawals, one for $2,000 and one for $1,000. The Respondent was captured by the closed circuit TV at the station as the person who made these withdrawals. The police identified the respondent from the TV recording and arrested the respondent. The respondent admitted to the police the robbery and theft of the money using PW1's credit card. He and Wong shared the loot. The respondent also admitted that together with Wong, he had committed another robbery in June 1999. On that occasion they followed a woman at a bus terminus. Wong went up and covered the woman's mouth, dragged her and trod on her before taking her belongings and passing them to the respondent.

4. It is accepted that without the respondent confessing, the second robbery would not have been detected. When passing sentences, the Recorder said this:

5. The Recorder was conscious of the fact that the respondent was 19 at the time of the offences and she was fully aware of the guidelines of R v Mo Kwong-sang [1981] HKLR 610. However, the Recorder considered that the respondent was greatly influenced by an older man and was probably led into the offences. But she nevertheless concluded that the respondent willingly embarked upon the second robbery and shared the spoils of both robberies. She adopted 6 years as the starting point for the robbery offences and 3 years for the theft offences and after discounting them for the respondent's plea and having considered totality, she imposed the present sentences.

6. Mr Cross SC who appears for the Secretary submits that the total sentence of 5 years for the robberies and consequential thefts is manifestly inadequate and/or wrong in principle. It is submitted for the Secretary that the guidelines of Mo Kwong-sang clearly contemplate a starting point of 7 years for the 1st robbery which involved violence and was committed by more than one robber in a group. As to the second robbery, because no weapon had been used in the robbery, a starting point of 6 years may have been appropriate. However, only one year of the sentence on the second robbery is consecutive. The effective additional punishment is one year imprisonment for a robbery with violence committed on a separate occasion on a lone woman by two robbers acting together. This is clearly inadequate.

7. Further it is submitted for the Secretary that the Recorder would seem to have adopted the lower starting point because of the age of the respondent and her consideration that the respondent probably was led into the offence under the influence of an older man. But young age unless extreme youth is not a mitigating factor in serious offences such as the present robberies.

8. Mr Sarony SC for the respondent accepts that any robbery which involves a violent blow to the head of the victim will attract a substantial term of immediate imprisonment but he submits that the issue on a review is for the court to determine if the sentences passed are manifestly inadequate in that it "falls outside the range of sentences which the judge, applying himself to all relevant factors could reasonably consider appropriate." (per Lord Lane CJ in AG's reference No. 4 of 1989)

9. Mr Sarony submits that although the guidelines of Mo Kwong-sang have been accepted by the courts in determining robbery sentences, these guidelines must be looked at in the context of that case i.e. the robbery was committed by two men who entered domestic premises at night and threatened the girl victim with a knife and tying her up. The guidelines identify the aggravating factors in a robbery of this character and are entirely appropriate for robberies in such heinous circumstances. The robberies in the present case are of a different character, the starting points in Mo Kwong-sang should not apply. He further submits that there are mitigating features in the present case to which the Recorder had given serious consideration without ignoring the gravity of these robberies. The total sentence of 5 years is not manifestly inadequate.

10. In any view, these robberies are without doubt, really serious offences. The respondent and his confederate targeted their attack on the lone and vulnerable, unguarded victims on the street. The violence they used was deliberately aimed at disabling the defenceless victim regardless of the injury that might be caused to the victim.

11. In HKSAR v Tang Kai-hi Cr App 531/99 the applicant hit a 17 years old girl walking along by herself a pedestrian subway on the back of her head with a brick and grabbing her neck from behind, the applicant tried to snatch her handbag. The trial Judge followed Mo Kwong-sang and adopted a starting point of 6 years. The Court of Appeal held the trial Judge had correctly applied the guidelines in Mo Kwong-sang "for a robbery case in which a dangerous weapon had been used to inflict physical violence" and "where violence of this kind has been used by the offenders, the judge could have considered a starting point of seven years ..." (per Stuart-Moore VP).

12. As Stuart-Moore VP said in the more recent "head bashing" case of Secretary for Justice v Ma Ping-wah [2000] 2 HKLRD 312:

13. In that case Stuart-Moore VP suggested new guidelines for "head bashing cases" and said that "the usual sentence to be imposed for such robberies following a contested trial, where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or the culprit who is intent on robbery should not be less than 8 years imprisonment." But he was careful to add that the new guidelines' deterrent effect is intended to apply to offences committed after that judgment.

14. In our opinion, public interest requires the need for deterrence in offences of this kind. We certainly see strong grounds in the Secretary's argument that for the two robberies and the thefts, the sentence of 5 years is totally inadequate. We do not think that the respondent at the age of 19 could have been influenced by another person to embark on such a dangerous enterprise. His relatively young age carries little weight in mitigation in offences of such serious nature. Apart from his plea, we do not see any mitigating factor.

15. In our view, the line of authorities referred to in Mr Sarony's submission on robbery sentences are not helpful to us in determining the appropriate sentences for the robberies. Without taking into account the guideline in Ma Ping-wah which is not applicable here, the sentence of 5 years after plea for two robberies in their particular circumstances is unduly lenient.

16. As regards the theft charges, where money was stolen by the respondent using one of the credit cards taken from PW1, the sentences on these counts were 2 years each concurrent with the robbery sentences. This does not reflect an effective additional punishment for these thefts. Mr Cross submits that this is a further aggravating factor to which it was necessary for the Recorder to have attached full weight. Reference is made to what Bokhary JA (as he then was ) said in this regard in R v Sun Sheung-chung Cr App 152/93:

17. However, Stuart-Moore JA (as he then was) in HKSAR v Kwong Chi-ming Cr App 62/99 held the view that "if PIN numbers are extracted from the victim by threat or violence or both this would add severity to the offence."

18. We think that whichever of these two views we adopt, the Recorder cannot be critised for ordering the sentences on the theft to be concurrent with the robbery sentences so that there was no effective additional punishment for these offences, since the PIN number was not extracted from the victim during the robbery. The respondent succeeded in operating the ATM with the stolen credit card by testing whether the PIN could have been the victim's identity card number and by chance the victim did use his identity card number as his PIN number.

19. Our conclusion is the total sentence of 5 years after plea for all the offences is manifestly inadequate. The starting point for the 1st count and the 4th count of robbery should be 7 years and 6 years imprisonment respectively. After 1/3 reduction for his plea, the sentences for these two counts should be one of 4 years and 8 months and 4 years respectively. Having regard to the applicant's confession, without which the 4th count would never have been detected, he should be entitled to a further 6 months discount on the sentence of 4 years on the 4th count. Since these two robberies are separate offences committed at different time and places, we order that 1 year and 10 months of the sentence of 3 years and 6 months to run consecutively to the sentence in the 1st count. We do not consider the starting point of 3 years and the after plea concurrent sentence of 2 years for each of the 2nd and 3rd count inappropriate. We do not intend to disturb them. The total sentence is therefore 6 years and 6 months. We do not consider it right to reduce the sentence further even though this is a review of sentence. On a successful application for review of sentence a discount is only made if the sentence is increased by a significant amount, or the respondent is about to be released and the increase in sentence delays his release or the sentence is varied for non-custodial to custodial on review. The present case is not within any of these criteria. The end result of this is that the total sentence of 5 years is increased to 6 1/2 years. To this extent the application for review succeeds.