HKSAR v. NG PING TAK

CACC 52/2019

[2019] HKCA 965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 52 OF 2019

(ON APPEAL FROM HCCC 246 OF 2018)

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REASONS FOR JUDGMENT

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1.  The applicant was jointly charged with Chan Yuen Biu (“D1”) with two charges of “Robbery”, contrary to section 10 of the Theft Ordinance, Cap 210. On 6 August 2018 both defendants indicated guilty pleas in the Eastern Magistracy and were committed to the High Court for sentence. On 31 January 2019, they were appeared before Deputy High Court Judge Anthony Kwok (“the judge”) and were both sentenced to a total of 5 years and 8 months’ imprisonment. They both subsequently filed Notices of Application for Leave to Appeal (Form XI) against their sentences but on 18 April 2019 D1 abandoned his application.

2.  At the hearing of the applicant’s application I refused it and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The charges

3.  The two robberies were of two separate 7-11 convenience stores on 14 and 22 January 2018 in the early hours of the morning. Both robberies were committed by D1 with the applicant performing the role of getaway driver. In the robbery of 14 January, D1 pointed a chopper at the cashier and told him to open the cashier drawer. D1 took HK$3,670 and fled.

4.  In the robbery on 22 January 2018, D1 pointed a 5-inch cutter at the storekeeper, declared robbery and demanded money. The store keeper opened the cashier drawer and D1 took HK$3,990 cash and fled.

5.  Under caution, the applicant claimed that it was D1 who asked him to drive him to rob and he drove D1 to the offence locations and was given HK$1,800 and HK$1,500 respectively on the two occasions. He had already spent all the money he obtained from the robberies. In subsequent video records of interview, the applicant admitted that he was a drug addict and worked as a part-time taxi driver. He came to know D1 in a methadone clinic in Kwun Tong and he agreed to help D1 because he, the applicant, was in debt.

The judge’s Reasons for Sentence

6.  The judge took the view that the robberies were pre-planned, and found the two offenders set out to target convenience stores in the early hours of the morning, knowing that there would be some cash and mostly with a lone employee on duty. The judge had regard to each offender’s role and that they split the proceeds from the robberies. He concluded that their culpability was the same. The judge recognised that whilst both robberies involved the display of weapons to the storekeepers, no actual violence was inflicted on them.

7.  After reviewing relevant authorities, the judge held that, in accordance with the leading case of Mo Kwong Sang v R[1] the appropriate starting point for each charge was 5 years’ imprisonment. He said that it was an aggravating factor that each robbery was of a convenience store and enhanced his starting point by 1 year to allow for this and, thereby, reached a final starting point for each charge of 6 years’ imprisonment.

8.  Whilst the applicant had similar convictions in the past, the last one being a robbery offence in 2005, the judge decided to not further enhance his sentence as they were a long time ago and the applicant was aged 66 at the time of the sentencing.

9.  By reason of their timely guilty pleas, D1 and the applicant were each entitled to the full one-third discount. Thus, the sentence for each of them on each charge became 4 years’ imprisonment. Having considered the totality principle, the judge adopted a notional starting point of 8½ years’ imprisonment to reflect the overall culpability of the two robberies and he regarded a total sentence of 68 months’ imprisonment after one-third discount as appropriate.

10.  In order to achieve this total sentence, the judge ordered 20 months of the sentence on Charge 2 to run consecutively to the 4 years’ imprisonment on Charge 1.   

The applicant’s ground of appeal

11.  The applicant was unrepresented in the leave application. In his Form XI, he complained that his sentences were excessive and he should have received a shorter term than D1 as he was only doing “escort service” and did not take part in the actual robberies.

12.  At the hearing of the application he did not add to what he had written in his Form XI.

Discussion

13.  The two robbery offences were committed as a joint enterprise. It is trite sentencing law that a person who knowingly assists in advancing the criminal joint enterprise cannot normally expect a lesser sentence than the other participants simply because his role was different from that of his accomplices. I am of the view that it is not reasonably arguable that the judge erred in his assessment that the applicant’s culpability for these offences was the same as D1. There was nothing about his participation in this criminal enterprise which clearly distinguished him from D1.

14.  The applicable sentencing guidelines for the offence of robbery are laid down in the Court of Appeal’s judgment in Mo Kwong Sang which the judge correctly applied. The starting point of 5 years’ imprisonment which was adopted by the judge is appropriate for an armed robbery where a weapon is displayed to the victim, as occurred in the present offences.

15.  The judge rightly regarded the fact that the victims were the staff of convenient stores as an aggravating factor. This was in accordance with binding judgments of the Court of Appeal in HKSAR v Lam Hoi[2], HKSAR v Kwok Cheuk Man[3] and HKSAR v Wong Cheung[4]. I note that in Lam Hoi the Court of Appeal held that an enhancement of 1 year imprisonment was appropriate for that defendant, but emphasised that it should not be taken as a norm for this particular aggravating factor.

16.  In the present case the judge adopted the same level of enhancement. The decision of what quantum of enhancement is appropriate for this particular aggravating factoris an exercise of sentencing discretion by the trial judge. I cannot see any reasonably arguable basis for saying that this exercise of discretion by the judge miscarried.

17.  Notwithstanding that there is nothing to indicate the judge erred in the exercise of his discretion can it be said that the length of his enhancement is so outside of the range of enhancement that any sentencing court could reasonably impose that it must be excessive. I do not think it can. The highest that it can, arguably, be put is that it is towards the high end of the range but is not outside that range.    

18.  The next step the judge took was to have regard to the appropriate totality of the applicant’s sentence as a just punishment for his overall culpability for the two offences. He determined that a total sentence of 5 years 8 months was appropriate and to achieve that result, he ordered that 20 months of the sentence for Charge 2 be served consecutively to the sentence for Charge 1. I am of the view that it is not reasonably arguable that this total sentence is manifestly excessive. In reaching that conclusion I note the applicant’s criminal record. That record does suggest that the applicant is a person willing to turn to crime in order to fund his lifestyle and would entitle a sentencing court to conclude that he is a person in need of additional deterrence in his sentence. Notwithstanding his age, he does not appear to me to be an offender who is a candidate for leniency.

Disposition

19.  For these reasons I refused the application for leave to appeal against sentence. I informed the applicant of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.   

[1] [1981] HKLR 610

[2] CACC105/2016, unreported, 23 January 2017.

[3] [2005] 3 HKLRD 699

[4] [2011] 5 HKLRD 171