HKSAR v. WONG CHEUNG AND ANOTHER

[English Translation – 英譯本]
CACC184/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 184 OF 2009

(ON APPEAL FROM HCCC 110 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  There had been a number of burglaries and house robberies in the Shatin and Sai Kung areas from January 2004 to May 2008. A number of culprits entered variousprivate domestic premises in the early hours of the morning to steal or to rob.

2.  On 6 May 2008, four illegal immigrants, including the two applicants Wong Cheung and Chau Kei, and Tang Kwan and Wong Tak-chun were intercepted and arrested by police officers in Shatin. The police officers found that they were in possession of a large quantity of valuable property obtained from a burglary case. Wong Cheung admitted to the police officer that he had committed a number of robberies and burglaries with the other people. Subsequently, victims of the various robberies identified Wong Cheung and Chau Kei for havingtaken part in robbing them.

3.  On 4 May 2009, Wong Cheung (the 1^st Defendant) and Chau Kei (the 3^rd Defendant) pleaded guilty to a number of charges before Barnes J in the Court of First Instance of the High Court. They weresentenced to 19 years and 17 years 8 months respectively. Both of them were discontented with the sentences. They sought leave to appeal against sentence. After hearing, we allowed their applications and, treating the applications as the appeals proper, allowed their appeals against sentence and reduced their overall sentences to one of 12 years. The following are the reasons for judgment.

Charges and facts of the case

4.  Wong Cheung and Chau Kei admitted that they had committed the robberies in the 6^th, 7^th and 8^th charges with the other people. Wong Cheung also admitted that he had committed the robberies in the 9^th and the 11^th charges with the other people, and the burglaries in the 1^st and 12^th charges. On the other hand, Chau Kei admitted that he had committed the robberies in the 4^th and 10^th charges with the other people, the theft in the 5^th charge and the handling of stolen goods in the 12^th(sic) charge.

5.  We summarize the facts of the respective charges and the starting points adopted by Barnes J according to the written statement of Miss Teresa Kam, Senior Public Prosecutor appearing for the respondent, as follows:

Charge 1

In the small hours of the morning in an office of a pumping station of the Water Supplies Department in Ma On Shan, two wooden doors were prized open and the office was ransacked. After checking, it was found that a torch and a pack of white rice, valued at HK$237, had been stolen. Subsequently, D1’s fingerprint was found. The Court adopted 2 ½ years as the starting point.

Charge 4

In the small hours of the morning in a village house in Tseung Kwan O, the male and the female householders and the female domestic helper were fast asleep. Three robbers prized open the kitchen window and climbed into the house. Armed with knives, they went into the male householder’s bedroom, woke him up and forced him to take them to the female householder’s and the female domestic helper’s bedrooms. The three culprits tied up all of them and then ransacked the premises. They robbed them of property worth a total of $149,000. The robbers also forced the male householder to disclose the PIN of the ATM. Subsequently, the robbers used the cash withdrawal card to withdraw over HK$29,000 from the bank ATM. D3’s DNA was found at the scene. The Court adopted 8 ½ years as the starting point.

Charge 5

This was the withdrawal made with the ATM card snatched in Charge 4. The Court adopted 1 ½ years as the starting point.

Charge 6

In the small hours of the morning, the family of four including the male and female householders were sleeping in a detached villa in Shatin. The male householder heard some noise and went to the living room to check it out. He found three men each armed with a beef knife in the living room. The householder intended to retreat to the bedroom but was stopped by the culprits. All the family of four were tied up and the three robbers ransacked the premises wantonly. Property worth a total of $150,000 odd was robbed. Later, the victims freed themselves and reported the case to the police. The police found D3’s fingerprints at the scene and D1 was identified as one of the robbers in a subsequent identification parade. The Court adopted 8 years as the starting point.

Charge 7

In the small hours of the morning, four robbers armed with beef knives and choppers went into an OK Convenience Store in Shatin and declared robbery. They robbed two female staff and one male customer of the property on their person. The police found D3’s fingerprints at the scene and D1 was identified as one of the robbers. The Court adopted 5 ½ years as the starting point.

Charge 8

In the small hours of the morning in a villa located in Sai Koon (sic), the male householder and the two female domestic helpers were fast asleep. Five robbers went into the small house of the female domestic helpers near the swimming pool and tied them up. They also robbed them of their property including identity card, Octopus card and cash. One of the female domestic helpers was slightly injured. She sustained bruises on her head and foot. The five robbers then went into the big house where the male householder resided. In a room, they took away 30 pieces of gold ornaments worth a total of $30,000 odd and fled. Subsequently, the police found the fingerprints of D1 and D3 at the scene. The Court adopted 6 years as the starting point.

Charge 9

In the small hours of the morning, the male and female householders, their two small sons and the female domestic helper were fast asleep in a detached house in Kau To Shan, Shatin. Four culprits broke the glass house on the ground floor to gain entry. Armed with knives, they woke up everyone in the house and forced the victims to surrender all valuables and disclose the PIN of the ATM card. While D1 took the cash withdrawal card to the bank to withdraw $10,000, the other robbers tied up and guarded the victims in the house. Later, the victims freed themselves and reported the case to the police. D1 was identified in a subsequent identification parade. The Court adopted 9 years as the starting point.

Charge 10

In the small hours of the morning, the male householder and the female domestic helper were fast asleep in a detached house in Tai Po. Noise of things being broken was heard from the garden and four robbers armed with beef knives and choppers were seen entering the premises. The robbers took the female domestic helper to the master bedroom on the third floor and woke up the male householder. Having tied up the two of them, they ransacked the premises wantonly. They prized open a safe and stole property worth a total of $370,000. The police seized from the scene beef knife, chopper and a cigarette butt which was found to contain the DNA of D3. D3 was also identified in an identification parade. The Court adopted 8 ½ years as the starting point.

Charge 11

In the small hours of the morning when the male and female householders and the female domestic helper were sleeping in a detached house in Kau To Shan in Shatin, the alarm suddenly went off. After checking, the male householder reset the alarm and went back to the bedroom to sleep. At this juncture, the female domestic helper was woken up by two robbers and another two robbers went inside the house to subdue her. During a scuffle with the robbers, the female domestic helper had her ring finger cut with a 1.5 cm wound. After robbing her of some valuable property in her room, the robbers took her to the ground floor living room. At 8 o’clock in the morning, the householder, having got up, met the four robbers armed with knives in the ground floor living room. The robbers tied them up and ransacked the house before they fled. The victims later freed themselves and reported the case to the police. Property worth a total of $320,000 odd was robbed. The police found D1’s fingerprint at the scene and a watch robbed was later recovered from a pawnshop. Under caution, D1 admitted that he had pawned this watch with the identity card and home visit card of the householder. The Court adopted 8½ years as the starting point.

Charge 12

In the small hours of the morning, the male householder was sleeping in a villa in Sai Kung. When he woke up the following morning, he found the main door prized and the house ransacked. After checking, property worth a total of $25,000 was lost. The Court adopted 3 years as the starting point.

Charge 13

On 6 May 2008, when the four defendants were stopped by the police officers in Shatin, property robbed in Charge 12 was found upon search. The Court adopted 2 ½ years as the starting point.

Background of the Applicants

6.  Wong Cheung, aged 27, Chau Kei, aged 35, and their accomplices all came from Sichuan. They had no criminal record. They claimed that their homes were in ruins after the massive earthquake, so indesperation, they came to Hong Kong to commit crime. However, as Barnes J had rightly pointed out, the Sichuan earthquake took place on 12 May 2008 while they were arrested by the police on 6 May. Their commission of crimes had nothing to do with the earthquake.

The trial judge’s reasons for sentence

7.  Barnes J pointed out that the facts concerning the robbery charges were exceptionally serious. The applicants, acting in concert, trespassed into the luxury detached houses selected, tied up the victims and then plundered their property. On two of the occasions, the culprits even forced the victims to disclose the PINs of the cash withdrawal cards so that they could steal money from the ATMs successfully. In respect to the various counts of robbery, Barnes J followed the sentencing guidelines set out in the case of Mo Kwong-sang [1981] HKLR 610 and adopted 6 to 9 years’ imprisonment as the starting point.

8.  In respect of the offences of burglary in the 1^st and the 12^th charges that Wong Cheung faced, Barnes J adopted a starting point of 2½ years’ and 3 years’ imprisonment respectively. In respect of the 5^th Charge of theft that Chow Kei faced, Barnes J adopted a starting point of 1½ years’ imprisonment. Barnes J then, on account of the applicants’ guilty pleas, reduced the starting points by one-third to arrive at the sentences for the various charges.

9.  Had the sentences of all the 7 counts to which Wong Cheung and Chau Kei respectively pleaded guilty been added up, the overall sentences would be 28 years and 4 months and 27 years respectively. Barnes J ordered parts of the sentences to run concurrently, thus arriving at an overall sentence of 19 years and 17 years and 8 months for Wong Cheung and Chau Kei respectively.

Grounds of appeal

10.  Mr Suen Kam Hee, of counsel, who appears on behalf of the applicants, agrees to the various starting points adopted by Barnes J in the respective charges. He also agrees to Barnes J’s reduction of the starting points by one-third on account of the applicants’ guilty pleas. The only complaint he has is that Barnes J failed to adopt a global view indealing with the case, thereby reaching an overall sentence that is manifestly excessive.

11.  Mr Suen cited a number of authorities to illustrate the excessiveness of the overall sentences of the applicants. He emphasized that insofar as armed robbery not involving firearms or imitation firearms is concerned, the overall starting point will be no more than 18 years, even if the defendant has committed multiple offences. Mr Suen in particular pointed out that in HKSAR v Chan Hung Kit (CACC 572/2001), the defendant had, on 9 occasions, carried a knife to rob fashion shops. He tied up the victims or blindfolded them before robbing them of their property. The defendant pleaded guilty to the charges and was sentenced to a totality of 12 years’ imprisonment.

Standpoint of the respondent

12.  Mr Martin Hui, Senior Public Prosecutor, who appears for the respondent agrees that in so far as robbery not involving firearms or imitation firearms is concerned, the overall starting point will normally be no more than 18 years, even if it involves a number of co-offenders and multipleoffences. Nevertheless, Mr Hui pointed out that there are aggravating factors in this case. These include (1) the applicants acted in concert with a number of people to commit crimes; (2) they had come to Hong Kong on many occasions for the purpose of committing crimes, notwithstanding that they had already been punished for their illegal entry in another case; (3) the facts of these casesare serious in the sense that the applicants entered the private domestic premises very late at night to commit crimes; and (4) the applicants and their accomplices used knives to threaten the victims and tied them up. They even obtained their cash withdrawal cards to make withdrawals and the property involved worth over 1 milliondollars in total.

13.  Nevertheless, Mr Hui fairlyaccepted that there are factors in this case which justify for a reduction of sentence. These include that the applicants had no criminal record and that they did not use severe or gratuitous violence on the victims in the course of the incidents.

Discussion

14.  Both applicants are illegal immigrants. In a period as long as 4 years, they came to Hong Kong a number of times to commit extremely serious offences, includingcommitting house robbery on a number of occasions.

15.  In so far as the robberies are concerned, they are the most serious cases of their type. The applicants, acted in concert with the others, trespassed into the victims’ residence in the early hours of the morning while they were fast asleep. They woke them up, threatened them with knives and tied them up before robbing them of their valuable property. On two of the occasions, they even forced the victims to disclose the PINs so that the culprits could use the PINs to withdraw money from the bank accounts of the victims successfully.

16.  Apart from robbing private domestic premises, the applicants also armed themselves with knives and acted in concert with other people to rob a convenience store. This Court has once emphasized in a case of similar nature, that convenience stores are opened 24 hours and in general, carry large amount of cash, thus arevery tempting to robbers. In such circumstances, the offence of robbing a convenience store is akin to the offences of robbing a bank, a goldsmith shop or other shops which carry large amount of cash, heavy deterrent sentences are called for so as to prevent these shops from falling prey to robbers easily.

17.  As far as the various counts of robbery in this case are concerned, Barnes J adopted a starting point of 6 to 9 years’ imprisonment which is absolutely correct.

18.  Of course, the applicants committed multiple offences over a long period of time. The overall sentences must reflect this factor and the other aggravating factors. However, Wong Cheung’s overall sentence of 19 years andChau Kei’s overall sentence of 17 years and 8 months reflect that the starting points were 28½ years and 26 ½ years respectively.

19.  As far as armed robbery involving no firearms or imitation firearms is concerned, the starting points of 28 ½ years and 26 ½ are unprecedented.

20.  Where the defendant committed more than one offence of a similar nature at different times, it is right for the Court to impose a sentence higher than when there had been only one offence. However, the sentencer should not add up the sentences of the various charges, instead he should approach this matter as if the multiple charges have been dealt with together and on that basis, arrive at an appropriate total sentence. (See The Queen v Tong Hoi-fung [1988] 1 HKLR 610.)

21.  In R v Kwok Man-hung & others (CACC 17/1983), four defendants armed with knives trespassed into private domestic premises. Having threatened and tied up the occupants, they ransacked the house and took away property. Amongst these four defendants, one of them was convicted of 2 counts and (one of them) 3 counts of robbery. There was one who was convicted of 5 counts of robbery. As a result, the defendant convicted of 2 counts was sentenced to 8 years’ imprisonment. The defendant convicted of 3 counts was sentenced to 9 years’ imprisonment whereas the defendant convicted of 5 counts was sentenced to 10 years’ imprisonment. The Court of Appeal considered that the sentences were appropriate. We should point out that the defendants in that case were all young offenders at the age of 16 or 17.

22.  In R v Chan Chi-fai & others (CACC 593, 643/1983), 6 defendants armed with knives trespassed into a number of domestic premises, a dental clinic and a hairdressing saloon to rob. The culprits tied up and imprisoned the victims for a period as long as 12 hours. One of the victims was even forced to sign a bank withdrawal slip at knife point. Two victims were injured by knife. The 6 defendants were convicted of 2 to 5 counts of robbery and were sentenced to 8 to 11 years of imprisonment. Amongst the 6 defendants, one was 22 years of age and the others were around 18 years of age. When the Court of Appeal dismissed their appeal against sentence, it pointed out that where there was a multiplicity of offences, public interest must override the individual interests of the applicants. In these circumstances, despite the youthfulness of the defendants, severe penalty involving long terms of imprisonment was still called for.

23.  In AG v Ho Wing Ho (CAAR 12/1981), the defendant committed 3 burglaries. A few days later, in the same building, he committed robbery and rape inside premises twice. 3 days later, he even committed 3 aggravated burglaries. The defendant pleaded guilty to a total of 9 charges and was sentenced to a total of 5 years’ imprisonment. When the Court of Appeal reviewed the sentence, it was of the view that the original sentence of 5 years’ imprisonment was inadequate and an appropriate overall sentence should be one of 8 years.

24.  Compared with the above cases, the overall starting points of 28½ years and 26 ½ years adopted in this case and the ultimate sentences of 19 years and 17 years and 8 months are manifestly excessive. We must bear in mind that apart from tying up the victims, the defendants and their accomplices did not use any gratuitous violence on them, nor did the victims sustain any injuries. What is more, we must not forget that the two applicants had no previous record.

25.  In our view, from whatever angle we look at the sentences imposed in this case, the conclusion is that the sentences are manifestly excessive. In our view, although the charges Wong Cheung and Chau Kei faced are slightly different, there is no significant difference between their culpability. In such circumstances, there should not be a disparity of 2 years in the starting points.

26.  In our view, having regard to the principle of totality, an overall starting point of 18 years is sufficient to reflect the gravity of the offences committed by the applicants. Since the applicants pleaded guilty to the charges, the overall sentence should be reduced by one-third to 12 years.

27.  We uphold the respective sentences imposed on the individual charges against Wong Cheung, but order that save the sentence of 4 years’ imprisonment on count 8 which is to run consecutively to the 6 years on count 9 and the 2 years on count 12, the remainders shall run concurrently with the sentence of 6 years imposed on count 9.

28.  We also uphold the respective sentences imposed on the individual charges against Chau Kei, but order that save the sentence of 5 years and 8 months’ imprisonment on count 4 which is to run consecutively to the 1 year on count 5 and the 5 years and 4 months on count 6, the remainders shall run concurrently with the sentence of 5 years and 8 months imposed on count 4.

29.  The totality of sentence on Wong Cheung should be reduced from 19 years to 12 years while Chau Kei from 17 years 8 months to 12 years. For the reasons given, we allow the two applicants’ appeals against their sentences and substitute therewith the above sentences.