HKSAR v. CHUNG KA HUNG

CACC 349/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 349OF 2008

(ON APPEAL FROM HCCC NO. 138 OF 2008)

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BETWEEN

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J U D G M E N T

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

Introduction

1.  On 14 October 2008, the applicant and a co-defendant pleaded guilty to two charges of robbery in the Court of First Instance before Deputy Judge Mackintosh, as he then was.

2.  Finding no reason to differentiate between the culpability of the applicant and his co-defendant, the judge considered that a proper starting point for each offence of robbery was one of seven years’ imprisonment. He reduced the sentence in each case by one-third to four years and eight months’ imprisonment in order to take into account all mitigating factors including the pleas of guilty, the previous clear records of both the applicant and his co-defendant and their obvious remorse. Thereafter, in seeking an appropriate totality of sentence, the judge ordered that only half of the sentence for the second count of robbery, a period of two years and four months, should run consecutively with the first. In the result, both the applicant and his co-defendant were sentenced to a term of imprisonment of seven years.

3.  The applicant now seeks leave to appeal his sentence.

The robberies

4.  On all the evidence, it appears that the applicant and his co-defendant were reluctant robbers. Neither had been in trouble with the law before. Indeed, the applicant had received recognition for his contribution to society during the SARS epidemic, a matter to which we shall turn shortly. Both however had fallen on hard times. In the result, they resolved to try and find a way out of their predicament by way of robbery.

5.  The first robbery took place at about 10 o’clock at night on 25 July 2007. The victim, a woman who was walking alone, was grabbed from behind, her mouth being covered so that she could not cry out. She was lifted into the back of a van. Inside the vehicle, her hands and feet were tied. She was told to be quiet and to close her eyes. The van then drove off. During the course of the journey, estimated to have lasted between 20 to 30 minutes, the victim’s bank cards were seized and her PIN number was obtained from her. The applicant and his colleague were able to access an ATM machine, removing some $19,000. Later, the victim was untied and left on a street some distance from where she had originally been accosted.

6.  The second robbery took place in the early hours of the morning on 7 August 2007, some two weeks later. Again, the victim was a woman walking alone. She too was grabbed from behind, her mouth being covered so that she could not cry out. She too was then lifted into the back of a van. Her wrists were tied and adhesive tape was placed over her mouth. The van then drove off. As with the first robbery, the victim’s bank cards were seized and her PIN number obtained. In the result, a sum of $11,000 of the victim’s money was withdrawn from an ATM machine. On this occasion, however, when the van stopped at the ATM machine, the victim was able to get out of the vehicle. She attempted to escape but fell to the ground, sustaining a minor cut to her arm. There was a brief struggle with the applicant. The victim told the applicant that, if she was allowed to leave, she would not report the matter to the police. By this time a number of bystanders had been drawn to what was happening. The applicant, it appears, allowed the victim to leave. He and his colleague then drove off in the van.

7.  When arrested, the applicant freely admitted his guilt and expressed remorse for what he had done.

The reasoning of the judge

8.  While no weapons were used, both robberies were violent and prolonged. In our view, the judge was entitled to describe the almost inevitable effect on the victim’s in the following terms:

“It takes little imagination to appreciate the terror which you inflicted on the two lone women whom you snatched off the street late at night.  The cries of each were stifled by a hand over the mouth.  Each was dragged into a van out of public view, restrained by plastic ties and driven away ....”

9.  In coming to his determination that an appropriate starting point for each robbery was seven years, the judge took into account a number of aggravating features. These included the following. First, the robberies were the result of careful planning. Second, the applicants worked together, targeting isolated and vulnerable victims. Third, the victims were physically restrained: the first victim was tied by the wrists and ankles while the second was tied by the wrists and had an adhesive tape placed over her mouth. Fourth, the victims were driven away from the scene, each being kept under restraint for a significant period of time.

10.  The applicant and his colleague may not have intended any harm to the victims but on any sensible reckoning the method of robbery chosen by them was designed to inflict on the victims a prolonged period of alarm and anxiety as to their fate. As the judge put it:

“These were not short-lived attacks, over in a few seconds, but amounted to prolonged agony suffered by these women being held in a darkened van, driven they knew not where, whilst they imagined all the possible consequences of this attack by two strangers.”

11.  The judge further took into account as an aggravating feature what has been described in similar cases as the ‘bank account’ feature. That this constitutes a materially aggravating feature has been confirmed by this Court in R v Sun Sheung Chung CACC 152/1993 when Bokhary JA, as he then was, said:

“Where bank account-operating material is extracted along with other property, then this is the position. First, the potential for loss of the victim is increased, possibly very considerably. Secondly, the potential for gain to the criminal is correspondingly increased.  Thirdly, the sense of violation suffered by the victim is, it is not difficult to imagine, heightened.  And, fourthly, the period and scope of the criminal activity involved is extended.

This ‘bank account’ feature, as we will term it, is appearing with mounting and alarming frequency in robbery offences against householders and others.  The time has come to warn malefactors - and this warning will become more and more firm as time passes if this sort of things continues unabated.  Such a feature is a considerable element of aggravation; and it will attract additional punishment as a result.”

12.  As to matters of mitigation, while the judge correctly rejected the suggestion that an attempt to get out of debt was any justification for robbery, he did recognise that the commission of the offences had been very much out of character given that the applicant was a man of mature years with an unblemished record. He further recognised that, after his apprehension, the applicant had not only freely admitted his guilt but had demonstrated genuine remorse, this remorse being given practical effect in the pleas of guilty. The judge reflected these mitigating factors in his order that there be a one-third reduction in sentence. The mitigating factors would also have been given weight in the decision of the judge to order that only half of the prison sentence imposed for the second robbery should be served consecutively to the sentence imposed for the first.

The ground of appeal

13.  There is a single ground of appeal. It is to the effect that, in passing sentence, the judge failed to give adequate weight not simply to the fact that the applicant had a clear record but to evidence of his previous positive good character. It has been urged upon us that the evidence of this positive good character had been demonstrated by two events. First, during the SARS epidemic, when the applicant was employed by the Hospital Authority as a technician working often in operating theatres, he had remained in his employment at considerable personal risk. In this respect his conduct – along with the conduct of other people who remained employed in the Hospital Authority – was recognized by the giving of awards. Second, at some time after the SARS epidemic, during a typhoon, the applicant had rendered first aid to a child injured in a motor car accident and had remained with the child until the arrival of an ambulance.

14.  In our judgment, the sentence imposed upon the applicant cannot be criticised as being wrong in principle or in any way excessive. Indeed, we go so far as to say that a higher sentence may well have withstood scrutiny. However, in matters of sentencing, it has long been recognised that evidence of earlier distinguished conduct of a selfless nature may, depending on the circumstances, be recognised by some reduction in sentence.

15.  Regrettably, it appears that the true nature of the applicant’s work during the SARS epidemic and the awards given to him was not made fully known to the judge at first instance. We have, this morning, been given further information. The applicant, as we have said, was employed during the SARS epidemic as a technician, having to work in operating theatres. During the course of the epidemic, he, along with other Hospital Authority staff, placed himself at risk of infection. When the SARS epidemic had ended, awards were struck by the Hospital Authority. We have been shown the two awards given to the applicant. One is described as a “Star of Life”, commemorating the work of Hospital Authority members during the epidemic. The other is a similar commemorative medal.

16.  While all those who, as part of their regular employment, placed themselves at risk in combating SARS are owed society’s thanks and respect, there was in this case no evidence that the applicant volunteered for any particular hazardous duty or that his single contribution was so exemplary that a failure to recognise that fact would constitute an injustice to him.

17.  It has long been recognized by our courts that in violent crimes such as robbery previous good character can be given little, if any, weight. In our view, given the aggravating circumstances in which these two robberies were committed, the previous positive good character of the applicant carried with it little weight, certainly insufficient to merit a further reduction in sentence.

18.  Accordingly, the application for leave to appeal must be dismissed.