R. v. KWOK CHI KEUNG

IN THE COURT OF APPEAL

1993, No. 5

Application for Review

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. On 18 March this year the respondent, having come before His Honour Judge Gould, sitting as a deputy judge of the High Court, for sentence in respect of two offences of robbery and two of attempted robbery, was sentenced to three and a half years' imprisonment for each robbery and to one and a half year's imprisonment for each attempted robbery. The deputy judge ordered that the sentences be served concurrently.

2. Pursuant to leave granted by the Chief Justice on 2 April, the Attorney General applies for review of the sentences. The agreed facts were as follows.

First Charge: At about 11.50 p.m. on 13 October 1992 the respondent, who was armed with a wooden bat with a nail projecting from it, accosted a woman at the entrance of the Admiralty MTR Station. He declared robbery and demanded that she give him all her money. He then took her watch and necklace and made good his escape.

Third Charge: On 22 October at about 9.15 p.m. the respondent seized another woman by the neck at the footbridge near Gloucester Road. He attempted to drag her to a nearby construction site but she struggled violently and managed to escape.

Fourth Charge: On 23 October at about 11 p.m. the respondent grasped another woman by the sleeve at the footbridge near Harcourt Road and said something to her at a low voice which she could not understand. When she became alarmed and began shouting and screaming he released her.

Second Charge: Lastly, on 26 October at about 11.10 p.m. the respondent seized hold of another woman by her clothing at the footbridge near Harcourt Road. When she offered resistance, he struck her on the head with his fist, banged her head against a stone barrier and took her to nearby construction site where he relieved her of a walkman radio and cash in the sum of $350. A medical examination revealed that the woman had sustained a bruise 2 cm in diameter over the right parietal region, another bruise over her nose and right temporal region, redness over her left shoulder and an undisplaced fracture of the tip of her nasal bone.

3. As the result of a police operation in the area, the respondent was arrested at the junction of Queensway and Cotton Tree Drive. Subsequently, three of the victims identified him on an identification parade as being their attacker, and the applicant made statements to the police in which he admitted that he had committed all four offences.

4. He has five previous convictions for theft, one for attempted theft and one for possession of an offensive weapon. In passing sentence the deputy judge said this:

"I treat this as a series of four incidents over a span of two weeks and therefore I approach sentences on the basis of the totality principle. I consider that my starting point for activities of the kind described in the brief facts should be five years. I recognise that the defendant is remorseful. He has demonstrated that by pleading guilty at the earliest opportunity and by making admissions to the police concerning in particular the attempt charges and I will give the defendant credit for that remorse."

5. The Attorney General complains that the sentences imposed were manifestly inadequate and wrong in principle in that the four crimes constituted separate and distinct offences committed on different occasions over a period of two weeks and that, although five years' imprisonment was an appropriate starting point for sentence for one offence, it was not appropriate where multiple offences have been committed. Moreover, since the victims were lone women, one of whom was attacked and physically injured, another of whom was menaced with a weapon, the sentences wholly failed to reflect the gravity of the respondent's overall criminality.

6. Mr. McLanachan, who appeared on behalf of the respondent, frankly conceded that the sentences were lenient but submitted that it was perfectly proper for the deputy judge to treat a series of offences committed over a 14 day period as a single course of criminal conduct. Furthermore, in the light of the respondent's cooperation with the police in admitting his offences, his early pleas of guilty and the fact that, apart from the one occasion where he carried a weapon, his normal modus operandi was to commit robbery whilst unarmed, the judge was fully entitled to give him significant credit.

7. In Mo Kwong-sang v. R. [1981] HKLR 610 this court said that the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years' imprisonment.

8. A bat with a nail projecting from it is undoubtedly a dangerous weapon, although perhaps not as dangerous as a knife.

9. This court also stated in R. v. Tong Hoi-fung [1988]1 HKLR 610 that it has been said time and time again that where there is more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only one offence.

10. The reasons for this should be obvious. Not only must those who commit one offence be discouraged from entertaining the erroneous notion that if they commit further offences they will be liable to no greater punishment than that which they would receive for a single offence, but that justice requires that the greater degree of criminality manifested by repeated breaches of the law be visited by severer punishment than that inflicted for a single offence.

11. These were not offences forming part of a single transaction, but were separate and unrelated offences which occurred at different places and different times over a period of two weeks. The overall sentence of three and a half years was, in our view, manifestly inadequate. It is not clear what the deputy judge meant by the first sentence in the passage which we have quoted from the remarks which he made at the time of sentencing. But in the light of the overall sentence which he passed it seems that he treated the offences as forming part of a single transaction. If that was his approach then it was plainly an error in principle. The proper starting point for sentence on the first charge alone was five years' imprisonment. Similarly with regard to the sentence on the second charge where the offence was one involving considerable gratuitous violence to a defenceless woman. The deputy judge was therefore in error in stating that a starting point of five years was appropriate for the entire course of the respondent's conduct.

12. In our view the proper starting points for sentence for the four offences are five years' imprisonment for each of those forming the subject of the first two charges and three years' imprisonment for each of those in the third and fourth charges. In the light of all the circumstances including the respondent's immediate confessions of guilt and his pleas of guilty at the earliest possible opportunity, we think that the sentences in respect of the first two charges should each be reduced by one and a half years and those on each of the third and fourth charges by one year. Applying the totality principle we consider that the proper overall sentence is one of six years' imprisonment.

13. We therefore grant the application, set aside the sentences imposed and substitute for them the following sentences: On the first charge a sentence of three and a half years' imprisonment; on the second charge a sentence of three and a half years' imprisonment; on the third charge a sentence of two years' imprisonment; and on the fourth charge a sentence of two years' imprisonment.

14. To achieve an overall sentence of six years' imprisonment we order that one and a half years of the sentence on the second charge be consecutive to the sentence on the first charge, and that six months of the sentences on the third and fourth charges be served consecutively to each other and to the sentences on the first two charges.