THE QUEEN v. OI HO PA YEE

IN THE COURT OF APPEAL

1993 No. 480
(Criminal)

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JUDGMENT

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Hon Yang, CJ:

1. This is an application for leave to appeal against two sentences: one of four years’ imprisonment for a robbery and the other of 15 months for remaining in Hong Kong as an illegal immigrant. The applicant was at the time of the offence 18 years of age. He pleaded guilty to both offences.

2. The facts are these. The applicant, together with his co-accused, both of whom were illegal immigrants, entered a house in the New Territories through an unsecured window in the small hours of the morning of 2 December 1992. Whilst inside the premises, they overpowered an old lady who was then 78 years of age and lived alone. They seized her, bound her and gagged her. They pushed her into the bedroom where they robbed her of some jewellery and shoes and $400 in cash. The two intruders remained inside the premises for two or three hours, ransacking the place in the meantime. They also took food and drink from the refrigerator.

3. In passing sentence, the learned trial judge noted that these two men had trekked into Hong Kong; they arrived hungry and with their shoes broken. Their original intention, it would appear, was simply to enter a house in order to take food and drink. They took the shoes in the house because their own shoes were damaged. Noting that no weapons were used, the judge, however, observed that, apart from the applicant and his co-accused, there were some other men who went into the house in question. He also observed that these were domestic premises and the robbery was committed in the small hours of the morning.

4. There are guidelines given by the Court of Appeal for sentences in robbery cases, vide R v. MO Kwong-sang (1981) HKLR 610. It is said there that an armed robbery involving invasion of domestic premises in the early hours of the morning by a gang who tied up their victims should attract a sentence of something like seven years. The judge thought that a discount of one year and three months should be given for this applicant’s plea of guilty. We are of the view that the four years given for the robbery count is manifestly inadequate, having regard to the circumstances of the robbery.

5. In all the circumstances, we would allow the application, treat the application as hearing of the appeal, allow the appeal and quash the sentence of four years, but replace it with a sentence of five years’ imprisonment. The five years on the robbery count to run consecutively with the sentence of 15 months on the count for remaining in Hong Kong illegally, thereby making a total of six years and three months.