HKSAR v. LIU WING CHEONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 325
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty before Hartmann, J. of two counts of robbery and one count of burglary. He was sentenced to a total of 6 1/2 years' imprisonment. He now seeks leave to appeal against the sentences imposed upon him.

2. According to the agreed facts both robberies occurred in domestic premises. The modus operandi was that the Applicant would respond to advertisements for the sale of flats and assume the guise of an interested prospective purchaser. He would only proceed in this way if he had satisfied himself that in all probability the only person who would be present when he inspected the flat would be a female who was alone. He would attend at the flat with an accomplice and at an appropriate juncture the female would be physically overborne and would be gagged and bound up and tape would be affixed over her eyes. The Applicant and the accomplice would then steal whatever assets they could readily lay their hands on including relieving the victims at any items of jewellery. They would then making good their escape.

3. The burglary charged arose in this way. In the course of the second robbery the Applicant while searching the victim's handbag came across some keys which had a label attached to them giving particulars of an office address. This happened to be the office where the victim worked. In the early hours of the morning of the following day the Applicant attended at the premises and stole cash and various portable items.

4. The Judge summarised the aggravating features of each of the robberies in this way.

"First, the accused operated with a second man, that is his accomplice Ah Dee. Force of numbers, of course, always add to the fear that is instilled in the victim.

Second, the accused and his accomplice ensured that they had a single female alone in the flat. A woman being chosen because of her physical vulnerability.

Third, each woman was not only tied, around the arms and the legs, but was gagged and blindfolded. Each took time to get free after the robbers had escaped.

Fourth, on each occasion threats were made, one woman was told that she would be stabbed to death if she resisted. I can well understand a woman on her own in such a predicament, taking such a threat seriously, even if no knife was brandished.

The second victim peering through her blindfold saw an object pointed at her chin which as I have said, she believed, in her fear and her anxiety, to be perhaps some form of slim and small firearm. It was, in fact, only a pen, but the fact that a pen should be wielded in a threatening way like this is in my opinion a form of threat.

In summary, in respect of each robbery the defendant and his accomplice invaded private premises. They tied up their victims, they blindfolded and gagged them, and they issued threats. There were two men involved and one vulnerable female in each instance."

5. The Judge approached sentencing in this way. He considered each of the robberies attracted sentences of 5 1/2 years' imprisonment. He also considered that the starting point for the burglary of commercial premises should be 2 1/2 years and that as this was an added feature to the 2nd robbery the sentence should be served consecutively. He did however have regard to the totality principle and decided the appropriate total sentence should be 11 years. He considered that in addition to the usual 1/3 discount for the pleas the Applicant should also receive some recognition for the assistance which it was accepted he had given the authorities. The discount was increased from 33 1/3% to 40%, thus giving a total of 6 1/2 years. For this he sentenced the Applicant to 5 years for each of the robberies to be served concurrently and 1 1/2 years for the burglary to be served consecutively.

6. In his application the Applicant makes general complaint that the sentences imposed were excessive and he didn't obtain the discount he was entitled to.

7. He took us through the calculations which were made by the Judge in determining the appropriate sentences. He complained that he should not have been ordered to serve the sentences consecutively.

8. We have already indicated how the Judge worked out the sentences to be imposed. This was a perfectly logical way of dealing with the exercise. It has to be appreciated that the actual allocation of sentences was an artificial or notional exercise.

9. These were very bad cases. These sentences imposed were within the range of sentences for these types of offences. The application is dismissed.