HKSAR v. NGAN PO YUK

CACC 450/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 450 OF 2001

(ON APPEAL FROM HCCC NO. 251 OF 2001)

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J U D G M E N T

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

1 This is an application for leave to appeal against conviction and sentence. The applicant represents himself in relation to the conviction application, and is represented by Mr Suen in relation to sentence.

2 The applicant appeared in the Court of First Instance in September 2001 before Deputy Judge McCoy, and pleaded guilty to one count of attempted robbery. The allegation was that on 22 April 2001 by Pine Hill Villa, Jardine's Lookout, Happy Valley, he attempted to rob the complainant in this case who was a resident there or nearby. There was a second count by which he was charged with carrying an imitation firearm with intent to commit an arrestable offence, but upon his plea of guilty to the robbery charge, that count was ordered to be left on the file, not to be proceeded with without leave of the court.

Facts

3 The facts are as follows. The victim in this case is a lady aged 32-year who resided in Wilson Road, Happy Valley, Hong Kong. During the afternoon of 22 April 2001 she returned to her home by car. As she alighted from her vehicle, in the car park, the applicant approached, wearing black gloves, and he forced her to the ground, demanded money, pressed her down, and covered her mouth with his hand. He then told her to get into her car, but she pretended to have chest pain. The applicant had a stun gun with him, a gun in good working order capable of producing a peak pulse output of approximately 264,100 volts, and capable of causing pain, muscular contractions, and temporary incapacitation. The applicant applied the stun gun to the complainant's hip, and she felt the electric current. He then lifted her from the ground, whilst still covering her mouth with his hand, and he tried to force her to her car. She struggled, and broke free. He then grabbed her by her hair, pulled her back, and forced her onto the ground again. She feigned injury. He again covered her mouth with his hand, and tried to move her towards the vehicle. He then used the stun gun a second time, and she felt electric shocks to her waist as she lay face down on the ground. He put his arm around her waist, and tried to take her to the car, forced her towards the driver's seat, and then tried to push her further into the vehicle. Her father, aged 64 years, responding to her shouts, arrived and grabbed the applicant who then pulled out a black pistol-like object. The father took hold of the applicant's hand, and his neck. Two other male residents arrived and, after a struggle, the applicant was disarmed. He ran, but was caught, and the police arrived shortly thereafter. The stun gun was found in a trousers pocket, and a folding knife was also in his possession. He had on him a white gauze mask, and a piece of black cable about 15 feet in length. The victim, and those who came to her assistance, suffered minor injuries.

4 The police interviewed the applicant. He told them that he had arrived at Hong Kong from Shenzhen at 6 a.m. that day, had hidden under a truck and been taken to Happy Valley. He said that he had no intention of committing a crime in Hong Kong. The mask, he suggested, was to keep mosquitoes away at night, and the cable was for bandaging. He said that he was wearing gloves to prevent himself from being bitten by mosquitoes, and that when he saw the victim he was then suffering from a relapse of a mental illness, and was under the illusion that the victim was his girlfriend. He denied any intention to rob her.

5 These facts were put to the applicant who was represented by counsel. The judge asked the applicant whether he agreed the facts and, as our record shows, he said that he did.

Conviction

6 The basis of the applicant's application in relation to conviction is that he does not agree the facts of the case, and only pleaded guilty and agreed the facts because he was suffering from a mental problem. Indeed, he says, it was his mental problem that triggered the events for which he was charged, and, in support of this contention, he refers to the suggested fact that he tried to commit suicide before sentence. On the day of the plea he was, he says, dispirited and confused and his mind did not go with his deed. He also says that he does not agree that the gun had a voltage of 264,100 volts, as suggested in court, and that the judge was thereby misled.

7 The question whether there was some misunderstanding about the capacity of the stun gun is not in this case relevant to the question of plea. The question is whether he intended to admit his guilt of the attempted robbery, whether that plea was equivocal, and whether there is any basis to believe that plea might be a nullity on the suggested footing that his mind did not go with his deed. We have seen medical reports which gainsay the applicant's contentions as to his psychiatric condition, and his suggestion that he actually tried to commit suicide is also contradicted by evidence which we have seen. Furthermore, the evidence against the applicant was overwhelming, and he was caught red handed in the act of assaulting the complainant with the stun gun. Before us, he accepts that he did just that, but the unattractive twist which he puts on the attack is that he intended, not to rob her, but to indecently assault her. This fresh account is entirely different from the exculpatory, but fanciful, account which he gave to the police. The fact is that his account to us is not worthy of any credit. We see no point in consulting counsel who acted for him.

8 In the circumstances which we have described, we see nothing in the application for leave to appeal against conviction, and it is dismissed.

Sentence

9 The relevant history is as follows. The applicant is aged 28 years. His home is on the Mainland. He came to Hong Kong unlawfully in 1998, and on 4 April 1999 he committed an offence very similar to the present offence. On that occasion, he pointed an imitation firearm at a man outside that man's home in Jardine's Lookout, but ran away and was then caught by the police. He was charged with using an identity card belonging to another, possession of an imitation firearm, resisting a police officer in the execution of his duty, possession of an identity card belonging to another, and remaining in Hong Kong without lawful authority. For those offences he was, in October 1999, sentenced to a total of 30 months' imprisonment: 15 months for the firearm offence - an inadequate sentence, it seems to us - and another 15 months for the immigration related offences. We note that he then also asserted that he was mentally ill, but a psychiatric report disclosed that he was nothing of the sort.

10 He was discharged from custody on 8 December 2000. It follows that he returned to Hong Kong, again unlawfully, on 22 April 2001, that is, four months after his release, to commit precisely the same type of offences for which he had so recently served a substantial term of imprisonment. He committed this offence that day, and was arrested that day. Four days later, on 26 April 2001, he attempted to escape from custody, punching a Correctional Services Officer whilst doing so, and he has subsequently been sentenced to 14 days' imprisonment for that attempt.

11 On 8 June 2001, he was sentenced in the Magistrates Court to 16 months' imprisonment for the offences of remaining in Hong Kong without the authority of the Director of Immigration, and of possession of a forged identity card, this in relation to his entry to Hong Kong on 22 April, the day of this robbery.

12 We pause to say that it would be helpful in cases with a history such as the present were counsel for the Respondent to prepare a suitable chronology for the Court's assistance.

13 For this attempted robbery, the Deputy Judge took a starting point of 13 1/2 years' imprisonment and reduced that by one-third, to reflect the fact that the applicant pleaded guilty, a plea proffered on what was to be the first day of a six-day trial. In his lengthy sentencing analysis, the judge rehearsed the facts of the case, and took the view that this was a terrifying crime, in which the applicant not only carried a stun gun but actually used it and did so repeatedly; and in which he then used, as part of the robbery episode, an imitation firearm and also had in his possession a knife. He said:

"In my judgment, on the facts of this case, the special combination of the use of arms, namely, this stun-gun, albeit as Mr Leung correctly reminds me, was nowhere near at maximum, and the flourishing in the course of, or immediately at the time of the robbery of the imitation firearm, are serious aggravating features which take this right to the top of Mo Kwong Sang, and indeed beyond." (Tr. p. 12)

14 Having passed a sentence of nine years' imprisonment for the attempted robbery, the judge ordered that sentence to run consecutively to the sentence imposed in the Magistrates Court, of 16 months, for the immigration offences.

15 The grounds of the application for leave to appeal against sentence are these:

(1) That the starting point of 13 1/2 years was too high, this not being the most serious type of robbery;

(2) that in ordering the sentence to run consecutively to the 16 months term, the judge failed to give adequate consideration to totality;

(3) that the judge placed too much weight on the maximum capacity of the gun when the actual electrical pulses generated in the course of commission of the offence were very small; and

(4) that the judge erred in saying that the imitation firearm was used in the course of the attempted robbery when in fact it was only used to evade arrest.

16 A question which, therefore, is raised by counsel for the applicant is whether it was appropriate for the judge to take the use of the imitation handgun into account at all. The judge held that the firearm was used "so close to the action that it was part of the attempted robbery".

17 It is not suggested in this case that the stun gun is a firearm or an imitation firearm. The firearm to which the second charge referred was the imitation handgun. The stun gun comes, in our judgment, within the category of a serious weapon as referred to in the phrase "knives or other dangerous weapons" in the case of Mo Kwong Sang [1981] HKLR 610, 611. There is no question but that had the judge been obliged to ignore the possession and use of the imitation handgun, the sentence imposed would have been too high.

18 The dividing line between the commission of an offence of robbery or attempted robbery, on the one hand, and, on the other, a subsequent offence committed in the course of an escape, when it might be said that the robbery or attempt is clearly over, is not a dividing line to be ignored, whether one is addressing conviction for the relevant offence, or sentence. The point now taken by the applicant is, in a sense, somewhat audacious because the second count which covered the carrying of the weapon was no doubt left on the file and not proceeded with, because it was assumed that its use would be taken into account in the sentencing for the Count 1 offence. Still, the accuracy or otherwise of the point must be addressed, and were it necessary this Court would give leave to the respondent, were leave sought, to proceed with that count separately. However, the argument is not, in our judgment, meritorious. We agree with the suggestion in Smith and Hogan "Criminal Law" 8th edition p. 550, that the question must be addressed as a matter of common sense, and that the theft or the attempted theft must be looked at in its entirety. We think that in this case the judge was quite right in saying that the use of the handgun was but part and parcel of the attempted theft. It was used whilst the victim was still on the ground, and whilst her father was approaching the applicant with a view to persuading him to stop what he was doing. He did not, however, stop what he was doing until he was disarmed. We note as well that the point was never taken in the court below, although that of itself is not determinative of the issue.

19 We have for the purposes of assessing the merits of this application been taken to a number of decided cases. Mo Kwong Sang is of some use, but there is the very important distinguishing feature in this case that the applicant was in possession of an imitation firearm as part of his weaponry, and used it. One of the cases was R v Yu Tai-wing [1995] 1 HKC 837 where a starting point of 10 years' imprisonment was said to be appropriate for a police officer who waited outside a bank and, having used an imitation firearm to threaten a customer who was leaving the bank, snatched a bag of money. It is to be noted that that offence was carried out in a public place and no injury was occasioned or was attempted to be inflicted upon the victim, and the accused was, no doubt, there a person without the history of offences which this applicant has accumulated. In Secretary for Justice v Li Man-biu and Others CAAR 4 of 2000, a starting point of 12 years' imprisonment was considered appropriate where a couple in a money exchange shop were attacked by three young men with an imitation firearm and knives, and one of the couple was cut in a struggle. In R v WONG Chi-fai and Another Cr App 280 of 1996, a 12 year starting point was again upheld where two men went to a canteen at night and brandished the imitation weapon and a knife and gagged the victims.

20 This case is different from those in several respects. It does not have some of their aggravating features, such as the fact that more than one person was involved. On the other hand, this case involved violence with its own brand of terror and overtones: an attack upon a woman within the curtilage of private premises; the use, on more than one occasion of a stun gun on the victim; the attempt to force this lady into a motor vehicle, an act which can only have caused her to fear all the more for her safety; and the fact that this applicant committed this offence - a well-planned offence, armed with a mask and gloves and a knife and an imitation firearm - very soon after his release from prison for offences with the same hallmarks. There is every reason to conclude that this applicant is a dangerous individual, who has demonstrated deliberation in his contempt for the laws of this territory, a view confirmed by his attitude in this Court. Whilst he is not punished again for his previous offences it is, in the circumstances of this case, evident that the starting point which would otherwise be warranted merits aggravation because "... he has clearly not learned any lesson and a greater deterrent sentence [is] necessary to be effective" (per P Chan J, as he then was, in R v Tam, Simon Magistracy Appeal 489 and 490 of 1996). In these particular circumstances we are of the opinion that whilst the starting point adopted by the Judge was high, and whilst others may have adopted a slightly lower starting point, interference by this Court would be in the nature of tinkering rather than a course which addressed the question whether the sentence was manifestly excessive. We do not think it was.

21 We have been exercised by a point not alluded to by counsel for the applicant, namely, that at the outset of his sentencing remarks, the Judge said that he considered it to be an aggravating factor that this offence was committed by the applicant when he had been here but 11 hours. Having referred to the fact that the applicant had been sentenced in 1999 and discharged in December 2000, the Deputy Judge said this:

"However, at 6am on 22 April this year, he returned to Hong Kong, having secreted himself under a lorry that arrived from Shenzhen. At 5 pm the same day, he committed the serious crime to which he has pleaded guilty. He had been here only 11 hours. I consider this to be a factor of aggravation." (Tr. p. 9)

If by 'this' the judge meant that the applicant's status as an illegal immigrant coming to Hong Kong to commit crime was, in itself, an aggravating feature, then that approach would in the circumstances of this case and for the reasons described in HKSAR v Man Hon Wu Chi-man CACC 491 of 2001 and HKSAR v Shek Tze-yuk and another CACC 528 of 2001, be an erroneous approach. But we note that nowhere in his remarks does the Judge say in terms that the starting point, which might otherwise have been imposed, merited further aggravation because this applicant required particular deterrence in view of the fact that he was offending so soon after his release for precisely the same type of offence. This is the point to which we think the judge must have been alluding by the passage we have repeated above. It was certainly a point to be made, and to which the Court must give effect. We are fortified in our conclusion by reason of the immediate context in which the judge was making his remarks, and by the judge's concluding remarks that he had not been urged to mitigate the sentence on account of the applicant's dislocation from the Mainland.

22 It is then said that the totality of sentences were too high, in other words, that to make the sentence of nine years for the robbery consecutive to that for the immigration offences was too much. We do not agree.

23 For the reasons we have given, the application for leave to appeal against sentence is dismissed.