HKSAR v. TAM TAK CHEUNG

CACC 209/2017

[2018] HKCA 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 209 OF 2017

(ON APPEAL FROM HCCC NO 138 OF 2016)

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J U D G M E N T

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1.  On 29 June 2017, the applicant pleaded guilty before Zervos J (“the judge”) to one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210 (Count 1) and one count of indecent assault (as an alternative to attempted rape), contrary to section 122(1) of the Crimes Ordinance, Cap 200 (Count 3). The further count of attempted rape (Count 2), to which the applicant pleaded not guilty, was left on the court file marked not to be proceeded with without leave of the court.

2.  The applicant was sentenced on the same day to an overall term of 6 years’ imprisonment.  On 12 July 2017, he filed a Notice of Application for leave to appeal (Form XI) in relation to sentence.  As is clear from perfected grounds of appeal against sentence filed on his behalf by counsel, Mr Jackson Poon, on 27 November 2017, the complaints concern the starting point in respect of the robbery charge (Count 1), and the overall totality of sentence.  Before me this morning, Mr Poon has made clear that he takes no issue with the starting point and sentence in respect of charge of the indecent assault (Count 3).

Facts admitted by the applicant

3.  Ms X, the victim of both charges, was a 23‑year‑old female.  After enjoying a drink with her friends on the night of 10 July 2015, she caught a taxi home alone.  Upon arriving at the lift lobby of her building, she entered a lift at 1:22 am on 11 July 2015.  The applicant entered the lift independently at the same time as Ms X.  When she emerged from the lift on the floor where she lived, the applicant followed her.  When they were still in the lift lobby area, the applicant suddenly hugged Ms X from behind and snatched her mobile telephone (valued at $5,798), which she was carrying in her hand.  Still hugging her from behind, he forcibly dragged her to the staircase of the building.  He said he only wanted money and told her not to make any sound, at the same time threatening Ms X that he was in possession of a knife.  In fact, it was accepted by the prosecution that he did not have a knife, although Ms X believed that he did.

4.  At the staircase, the applicant instructed Ms X to sit down, which she did, with the applicant positioning himself behind her so that she was unable to see his face.  Ms X smelt a strong smell of alcohol on the applicant at the time.  The applicant then told Ms X that he needed $40,000 for his mother to receive an operation and asked her to lend it to him. She refused.  Ms X made an attempt to escape, but in the course of doing so, fell and injured her knees.  The applicant grabbed hold of her again and a struggle ensued.  Eventually, Ms X desisted and talked with the applicant for 6 or 7 minutes on the staircase.  She was then grabbed by the arms and forced to go down the staircase several floors, where they sat down to chat again and smoke cigarettes.  The applicant repeated his request for a loan of $40,000, which Ms X again refused.

5.  After talking for about 4 or 5 minutes, the applicant became emotional and dragged Ms X to the railings of the staircase, telling her to jump down.  Ms X was understandably scared by this development and turned around to see the applicant’s face for the first time.  The applicant then said that he liked Ms X and that she should “let him do it with her once before he died”.  Ms X understood that the applicant wanted to have sexual intercourse with her.  She refused.

6.  The applicant then started to kiss Ms X on the mouth.  At the same time, he inserted his fingers into her panties and moved his fingers in and out of her vagina.  He then pushed her against the wall and pressed his body against her with force.  Ms X cried out for help and tried to resist, but was forced onto the floor.  Thereupon, the applicant began to take off his own pants and remove her slip dress.  Fortunately, a male who had heard Ms X’s cry for help came into the staircase and asked what was going on.  The applicant pretended that Ms X was his girlfriend, whereupon Ms X ran towards the male and said she did not know the applicant.  After shouting at Ms X and asking why she was unwilling to lend him $40,000, the applicant left as if nothing had happened.  The male immediately assisted Ms X to make a report to the police.

7.  As a result of the report, the applicant was arrested at Lok Ma Chau Control Point on 14 July 2015.  Two video recorded interviews were conducted with him on 17 July 2015, in which the applicant stated, inter alia, that:

(a) At the relevant time, he was drunk and depressed because of family problems;

(b) He took the mobile telephone off Ms X because he thought she was going to make a telephone call, which he perceived to be a threat to him;

(c) He recalled hugging Ms X, but with her permission.  It was Ms X who had led him to the staircase where they talked;

(d) Ms X told the applicant that she wanted to commit suicide with him and asked him if he wanted to have sex before jumping off the building; and

(e) He admitted kissing Ms X and putting his fingers inside her private parts.

8.  As a result of the robbery and indecent assault, Ms X sustained tenderness and redness to her right knee, and an abrasion to her shoulders, back and right elbow.

Mitigation

9.  The applicant was 33 years of age at the time of sentence.  He had received education up to Form One level and thereafter worked variously as a kitchen worker, a mechanic, a porter and a salesman.  He had three previous convictions including one for theft, for which he was made the subject of a community service order in 2002.  The applicant’s last previous conviction was also in 2002 for dealing with goods to which the Dutiable Commodities Ordinance applied, for which he had been sent to Detention Centre.

10.  It was submitted by defence counsel (not Mr Poon) during mitigation that the applicant suffered from depression; he had a daughter born in September 2015; and he had unwisely committed the robbery in order to pay for the medical expenses of his mother.

11.  For the indecent assault, defence counsel invited the judge to pass a sentence not exceeding 4 years’ imprisonment, relying upon the Court’s decision in HKSAR v Keita Ali[1].

Sentence

12.  In passing sentence, the judge noted that Ms X was a lone female who had been robbed in the common parts of domestic premises in the early hours of the morning.  She was so concerned about her safety that, following the incident, she had subsequently moved to live elsewhere[2].

13.  The judge noted that the applicant “threatened the victim and claimed that he had a knife on him”[3] and thereafter used physical violence on her.  Having referred to the guidelines in Mo Kwong Sang v R[4], the judge considered that the present case was more serious than an ordinary armed robbery (for which the normal starting point would have been 5 years’ imprisonment).  In his view, the offence called for an enhanced starting point of 6½ years’ imprisonment.

14.  As for the indecent assault, the judge said it was a “particularly shocking and grievous” offence[5], which “warrant[ed] severe punishment”[6]. In particular, the judge considered that it was a serious indecent assault on the victim, which involved a sexual molestation in the form of “kissing and fondling her and inserting [the applicant’s] fingers in her vagina”[7].  In the result, the judge adopted a starting point of 5 years’ imprisonment for the offence.

15.  The judge gave the applicant a one‑third discount in respect of the sentences on both counts, reducing the sentence on Count 1 to 4 years and 4 months’ imprisonment, and on Count 3 to 3 years and 4 months’ imprisonment.  He then ordered 20 months of the sentence on Count 3 to run consecutively to that of Count 1, making an overall sentence of 6 years’ imprisonment.

Grounds of appeal

16.  The main contention of Mr Poon, on behalf of the applicant, is that the sentence on Count 1 is manifestly excessive, given that no weapon was in fact used in the robbery.  He submitted that the base starting point before any consideration of aggravating features should have been 4 years’ imprisonment not 5 years’ imprisonment, which is the starting point envisaged under the guidelines in Mo Kwong Sang v R for an ordinary case of armed robbery, in which a knife or other dangerous weapon is carried and displayed to the victim.  Accordingly, the starting point of 6½ years’ imprisonment on Count 1 was too high.

17.  Mr Poon referred to various authorities where a starting point of 4 years’ imprisonment for robbery, without the use of a weapon, was accepted as appropriate by the Court: see R v Yau Kwok Tung[8]; HKSAR v Ting Chiu & Anor[9]; HKSAR v Lam Ka Hung[10]; and HKSAR v On Ling[11]. In HKSAR v On Ling, the Court held, at para 13, that the Mo Kwong Sang v R guidelines did not apply to the circumstances of an appellant who had pointed a roll of newspapers at a victim and declared his intention to rob, since no knife was in fact involved and it could not be said, therefore, to be an armed robbery.

Respondent’s submissions

18.  Whilst accepting that no knife or other dangerous weapon was in fact used or displayed in the robbery, Ms Laura Liu, on behalf of the respondent, submits that all of the aggravating features committed by the applicant were far more serious than those in the authorities to which Mr Poon referred.  Even if the offence was technically an unarmed robbery, whatever the victim may have actually and reasonably believed, the number of aggravating features coupled with a serious indecent assault wholly justified a resulting sentence of 6 years’ imprisonment after plea.  She reminded this Court of that which was said in HKSAR v Chui Chi Hung[12], another robbery sentence appeal, at para 12:

“As this Court has said on previous occasions the factual basis for sentence in any particular case is unique and references to judgments of this court in other cases even if of broadly similar circumstances, but in which no guideline for sentence is articulated, is not of any particular assistance.”

19.  Ms Liu submitted that the sentences received by the applicant, whether considered individually or as a whole, were not manifestly excessive.  She relied, in particular, on HKSAR v Au Yeung Siu Kay[13], in which the Court indicated appropriate starting points of 7 years’ imprisonment for an offence of robbery (Count 3), and at least 4½ years’ imprisonment for a “particularly nasty indecent assault” (Count 4), in circumstances where the victim had been grabbed by the applicant on leaving a lift in residential premises in the early hours of the morning, and pulled to a staircase where she was robbed and indecently assaulted.  For the offence of robbery and indecent assault, the Court said that a total sentence for the two offences after plea should have been 6 years’ imprisonment.

20.  One difference on the facts, of course, is that the applicant in HKSAR v Au Yeung Siu Kay was carrying an 11‑inch knife, which he displayed to the victim, whereas in the present case, the applicant claimed to be carrying a knife, when it is accepted he was not in fact carrying one, although the victim believed that he was.  Nevertheless, it will be remembered that the applicant remained behind Ms X until the incident by the railings; consequently, she was unable to see him fully until a much later stage in the unfolding drama.

Consideration

21.  The judge was presented with a number of aggravating features in respect of the robbery count.  In particular,

(i) The applicant claimed to be armed with a knife, which claim obviously terrified the victim who believed him, although it is accepted by the prosecution that there is no proof that he was so armed;

(ii) The robbery took place in the common areas of residential premises;

(iii) The offence concerned an attack on a lone female in the early hours of the morning;

(iv) Violence was used and repeated against the victim, including telling her to jump over the railings;

(v) The offence was carried out over a sustained period of time; and

(vi) The victim was so affected by her ordeal that she had had to move and live elsewhere.

22.  It should be borne in mind, however, that not every aggravating feature has the same value, and nor does it necessarily have the same force in cases involving different facts.

23.  I have to say, respectfully, that I have difficulty with the reasoning in HKSAR v On Ling, where the Court held that the purported carrying of a weapon, which was in fact a roll of newspapers, took the case outside the Mo Kwong Sang v R guidelines.  It is no consolation to the terrified victim of a robbery that, contrary to the defendant’s claim, there was in fact no weapon when he said, and the victim believed, that there was.  Nevertheless, the facts in HKSAR v On Ling were somewhat different.  There, the victim was able to see that what was pointed at him was in fact a roll of newspapers, before he immediately collapsed on the ground out of fright.

24.  In the present case, the victim was simply unable to see until a much later stage whether the applicant was armed or not: nevertheless, from his behaviour and his claim, she evidently believed throughout that period that he was so armed.  From the facts admitted in the Summary of Facts, it would have been at least 10‑12 minutes before Ms X was able to turn around and see the face of her assailant; a reasonable estimation on the facts would suggest that it would have been about 15 minutes from the time he first grabbed her in the lift lobby before she was able to see the applicant fully.  Yet throughout that ordeal, she would have believed, and did believe, that he was armed with a knife, because he said that he was.  The facts could be said to be rather different from those in HKSAR v On Ling.

25.  I further note that in the Robbery Offences Definitive Guidelines (2016) of the UK Current Sentencing Practice, Chapter M6‑200, the threat of violence by any weapon (but which is not produced) is equated in terms of culpability with the production of a weapon other than a bladed article or firearm or imitation firearm to threaten violence.  The Mo Kwong Sang v R guidelines applicable in Hong Kong are concerned with the carrying of a knife or other dangerous weapon (excluding firearms) which is displayed to the victim.

26.  In respect of the indecent assault, the applicant had kissed Ms X on the mouth, inserted his fingers into her vagina, propositioned her and made it clear, when he started to remove his pants and undo her slip, that he intended to have sexual intercourse with her.  But for the timely intervention of the male who heard Ms X’s cries for help, this would have been a far more serious offence than indecent assault.

27.  The question the Court of Appeal would have to ask itself is whether for this course of conduct, however the sentences between the two offences were apportioned, an overall sentence of 6 years’ imprisonment following pleas of guilty is manifestly excessive or wrong in principle.  Even if Mr Poon were right that the starting point for the offence of robbery alone was on the high side, the indecent assault was very serious and must have made this a terrifying, sustained and degrading ordeal for the victim, for which the court would have been justified in increasing the overall sentence substantially.  As the Court in R v Wong Kwok Keung[14] made clear:

“This Court has stated on previous occasions that where robbery victims are subjected to sexual assault of any sort the sentence for that attack will run consecutively to that for the robbery, and that the overall sentence will be substantial.”

28.  This was a substantial sentence.  However, I do not see any reasonably arguable grounds of appeal that the individual sentences or the totality of sentence were either manifestly excessive or wrong in principle.  Even if it could be argued, as Mr Poon has suggested, that the starting point for sentence on the robbery charge (Count 1) should have been 6 years’ imprisonment instead of 6½ years’ imprisonment, leading to a sentence after plea of 4 years’ imprisonment instead of 4 years 4 months’ imprisonment, the Court could well take the view that the consecutive element for the indecent assault charge (Count 3) should have been 2 years’ imprisonment rather than 20 months’ imprisonment.  In which case, the overall sentence would be exactly the same.

29.  The application is accordingly refused.  The applicant is reminded of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

[1] HKSAR v Keita Ali (unrep., CACC 419/2015, 21 March 2017).

[2] Ms X’s victim impact statement was read into the record: see Appeal Bundle p 28A-F.  She stated: “I am X.  Now I continue to assist the police in the investigation of the case in which a male robbed and attempted to rape me in the small hours of 11 July 2015, on the Nth floor of Fai Wah House while I was on my way back home after I had gone out for a walk.  After the happening of that case, I moved away from Fai Wah House to the present home in about August 2015 because the memory was still lingering in my mind at that time and I have been living there since then.  My mind has recovered gradually after the happening of this case and I do not need to be counselled by any psychologist or psychiatrist or by any means now.”

[3] Appeal Bundle p 33B.

[4] Mo Kwong Sang v R [1981] HKLR 610.

[5] Appeal Bundle p 33M.

[6] Appeal Bundle p 33Q-R.

[7] Appeal Bundle p 34D.

[8] R v Yau Kwok Tung [1987] HKLR 782.

[9] HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378.

[10] HKSAR v Lam Ka Hung (unrep., CACC 294/2003, 29 January 2004).

[11] HKSAR v On Ling (unrep., CACC 386/2004, 4 January 2005).

[12] HKSAR v Chui Chi Hung [2007] 2 HKLRD 409.

[13] HKSAR v Au Yeung Siu Kay (unrep., CACC 276/2001, 6 February 2002).

[14] R v Wong Kwok Keung (unrep., Cr App No 75 of 1989).