HKSAR v. WONG KA WO

CACC 212/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 212 OF 2004

(ON APPEAL FROM HCCC No. 66 OF 2004)

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the Court):

1. This is an appeal against sentence, leave having been granted by Stock JA on 26 July 2004.

2. On 29 April 2004, the Appellant pleaded guilty before Hon Beeson J to one charge of robbery and one charge of wounding with intent. He was sentenced to a total term of imprisonment of 7 years.

3. The victim was a second-hand electrical appliances trader. The Appellant (aged 24) had previously sold some household electrical appliances to him. On 1 November 2003, the Appellant told the victim that he had a computer to sell and took him to the wooden hut where he lived.

4. Outside the hut, the Appellant said they had to wait for someone. The Appellant then started to massage the victim's shoulders but when the victim moved away, he assaulted him. The victim managed to escape. The Appellant caught up with the victim and slashed him on the head, face and body with a fruit peeler. The Appellant then took the victim's wallet and mobile phone.

5. Although injured, the victim gave chase and a shopkeeper who was nearby caught the Appellant.

6. The victim sustained a number of cut wounds and was hospitalized for two days.

7. The Appellant admitted the offence to the police and pleaded guilty.

8. On the charge of robbery, the judge adopted a starting point of 8 years imprisonment. After the usual 1/3 discount for the plea of guilty was applied, the Appellant was sentenced to a term of imprisonment of 5 years and 4 months.

9. On the wounding charge, the judge adopted a starting point of 4 years imprisonment. After the 1/3 discount was applied, the Appellant was sentenced to a term of imprisonment of 2 years and 8 months.

10. The judge ordered that 1 year and 8 months of the sentence for the wounding charge be served consecutively to that for the robbery charge. The total term of imprisonment was therefore 7 years.

11. The Appellant's grounds of appeal are that the judge had set too high a starting point for the robbery charge, that she did not take into account relevant tariff and benchmark cases, that she should have ordered the sentences to be served concurrently and that she did not apply the principle of totality.

12. By arriving at a total term of imprisonment of 7 years after the 1/3 discount, the judge had in effect adopted an overall starting point of 10 1/2 years imprisonment. With respect, whilst the individual starting points adopted for the two charges may be unexceptional, the overall sentence for the two offences, which occurred in the course of one incident, is in our judgment excessive.

13. Secretary for Justice v Ma Ping-wah [2000] 2 HKLRD 312 was a "head-bashing" case where the defendant had hit the victim twice over the head with a rock, causing multiple lacerations on the head. The defendant was charged only with robbery. No doubt he could also have been charged with wounding with intent, as the medical evidence presented to the Court of Appeal indicated that in head-bashing cases, apart from the more obvious physical injuries, traumatic brain injury (including cognitive, emotional and behavioural injuries) may result, whether immediately or in the future.

14. It was held by the Court of Appeal (at 574-C) that the usual sentence to be imposed in "head-bashing" 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.

15. In HKSAR v Wong Hiu-man CACC 163/2001, the defendant chopped the victim on the head with a machete in the course of a robbery, causing a laceration. Two further blows missed. The Court of Appeal upheld a starting point of 8 years imprisonment for the robbery and 16 months imprisonment for wounding (s.19), but the sentences were to be served concurrently.

16. In the present application, whilst the victim did suffer a number of cut wounds, the weapon used was only a fruit peeler, which was shown to this court. It is rounded at the tip and the blade used to peel fruits is shallow and protected at the centre of the instrument. It is a far less harmful weapon than the rocks used in head-bashing cases considered in Ma Ping-wah or the machete used in Wong Hiu-man. The victim was discharged from hospital after only two days and suffered no permanent injury. Photographs that this court has been shown (although taken 10 days after the incident) show abrasions and minor (albeit lengthy) cut wounds, although some were on the head.

17. In the light of the above cases, the judge's adoption of a 10 1/2 year overall starting point in the present case was excessive.

18. Accordingly, this appeal is allowed. Whilst we maintain the judge's sentences in respect of each of the charges, the order that 1 year and 8 months of the sentence for the wounding charge be served consecutively to that for the robbery charge is quashed and we order that the sentences be served concurrently. In other words, the total term of imprisonment is to be 5 years and 4 months.