HKSAR v. TING CHIU AND ANOTHER

CACC 174/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 174 OF 2003

(ON APPEAL FROM DCCC NO. 317 OF 2002)

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REASONS FOR JUDGMENT

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

Introduction

1. This is an application for leave to appeal against sentence out of time by two applicants who were respectively the first defendant and the second defendant before Judge Wright in the District Court. The two applicants were jointly charged with robbery and separately charged with unlawfully remaining in Hong Kong. Each of them pleaded guilty to the related two charges. The judge adopted a starting point of five years' imprisonment for the robbery and 15 months of imprisonment for the unlawfully remaining, and he ordered the sentences to run consecutively, so that each of the applicants received an overall sentence of 60 months' imprisonment.

2. The convictions of the applicants were entered on 22 May 2002 and the judge sentenced them on the same day. The Notice of Application for leave of the first applicant was dated 25 April 2003 and that of the second applicant was dated 29 April 2003, about 11 months after sentence.

3. The reason that each of the applicants has given for the delay is the same. They did not know the law and only realised that the sentence imposed on them for the robbery offence was excessive and was liable to be reduced after they had read newspaper reports on similar cases.

4. It is to be noted that their complaint only relates to the sentence passed on the applicants in respect of the robbery charge.

5. At the conclusion of the hearing on 6 August 2003, we granted the applications and treating the applications as appeals proper, we allowed the appeals, set aside the sentences imposed by the judge on the applicants on the robbery charge and substituted a sentence of 32 months of imprisonment on each of the applicants for that charge. The sentence on each applicant for the unlawfully remaining charge remained unchanged, ie, 15 months' imprisonment to be served consecutively to the sentence for the robbery charge. We stated we would hand down our reasons. They appear below.

Grounds of appeal

6. On behalf of the applicants, Ms Alice Lee raised two grounds of appeal, namely,

(1) The starting point of five years' imprisonment adopted by the judge was too high; and

(2) The judge erred in failing to give the applicants the full one-third discount for their guilty pleas.

The facts

7. The circumstances surrounding the commission of the robbery were subject to a dispute, which was whether a knife was produced when the crime was committed. After a Newton Inquiry, the judge held that he could not be satisfied beyond a reasonable doubt that a knife was produced in the course of the robbery.

8. The judge found the following facts:

"2. ... Around midday on ... 17 February this year [2002], a man and his wife were out walking near Lion Rock. They are a middle-aged couple. Whilst they were walking the two Accused, together with two other males, encountered them.

3. The four males rushed towards them and the 2nd Accused declared that it was a robbery. I am satisfied that the 2nd Accused took hold of the male. Together with another person who has not been arrested, he relieved the male of certain of his possessions. Those included an amount of $180 in cash as well as a wristwatch.

4. ... Whilst the 2nd Accused and the other male were dealing with PW1, the 1st Accused and the fourth male involved themselves with PW1's wife, PW2.

5. I accepted her evidence that the 1st Accused had held onto her arm. No property was removed from her possession. The four males, including the two Accused before the court, fled. ...."

The starting point for unarmed robbery

9. Regarding the starting point, the judge said:

"9. As Mr Chau, who appears for both the Accused, has made reference to the leading authority in regard to the question of appropriate sentence for offences of robbery, that of Mo Kwong-sang. Taking into account the views expressed in that judgment and the circumstances which apply in this matter, I am of the view that the appropriate starting point is one of 5 years imprisonment. I take that as my starting point in respect of the first offence for each Accused."

10. Ms Lee emphasised that the guidelines laid down in Mo Kwong-sang v The Queen [1981] HKLR 610 applied to offences of "armed robbery" only. In Mo Kwong-sang, Roberts CJ, delivering the judgment of the Court of Appeal, stated at p 611D-H as follows:

"By the word 'armed' in this judgment, we are referring to knives and other dangerous weapons, but not to firearms for which severer sentences are normally imposed.

...

We suggest that, in future, 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.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest a sentence of six years would be appropriate.

If any physical violence, which includes typing them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty."

11. As the judge was not satisfied beyond a reasonable doubt that a knife was produced in the course of the robbery in the present case, obviously it is not the case where the normal sentence of five years, as suggested in Mo Kwong-sang, can be applied.

12. In The Queen v Yau Kwok-tung [1987] HKLR 782, the facts are set out at 783D:

"The third charge of robbery related to incidents which took place in the early hours of the morning of 23rd June, when Mr. Lee and his wife were approached by the applicant and another man, who demanded to see their identity cards, which were handed over. The husband was searched and $300 were taken from him. One of the robbers snatched a necklace from the wife's neck, but returned it when told it was a fake.

The victims said, and this was accepted by the judge, that during the robbery it was the defendant who did most of the talking and that the wife was very frightened."

13. Delivering the judgment of the Court of Appeal, Roberts CJ said at 783I as follows:

"A sentence of four years, in the circumstances of this case, is at the top end of the tariff for robberies where weapons are not displayed. Nevertheless, the offence took place at night, the victims were frightened and we do not regard it as so manifestly excessive that it would be proper for us to interfere with it."

14. We were also referred to the case of HKSAR v Wong Yuk-cheung, CACC 156/1999 (4 June 1999, CA, unreported) where the Court of Appeal did not interfere with the starting point of four years adopted by the trial judge for a robbery with a nail clipper which had a 2-inch blade that could be extended from it, which the judge treated as a case of unarmed robbery.

15. In the present case, Ms Lee stressed the following significant facts. The judge was not satisfied that any weapon was used during the robbery, there was little physical violence applied to the two victims and the value of the property robbed was relatively minor. She submitted that in view of all these circumstances, the judge was wrong in taking five years as the starting point. On the other hand, Mr Madigan, for the respondent, drew our attention to an aggravating feature, namely, "the presence of more than one person in the group of robbers", as mentioned in Mo Kwong-sang. Although Mr Madigan accepted that the starting point of five years appears on the authorities to be high, he invited this Court to uphold the sentence, as deterrence to gangs of young persons preying on hikers in lonely places. We accept that a robbery involving more than one culprit should be viewed more seriously by the courts than one involving only one culprit, because the threat and pressure exerted by a number of robbers on the victim are obviously more serious than those exerted by a lone robber. However, we cannot accept that robbery on hikers should be dealt with more seriously by the courts than robberies on other persons. We do not see any special aggravation of the offence when it is committed on a hiker than any other robbery where the culprit, for example, waylays a victim in any public place.

16. In the circumstances, we are of the view that a proper starting point, taking into account the robbery in our case being an unarmed one, should as a matter of principle be lower than that for an armed robbery of the kind envisaged in Mo Kwong-sang. However, as it was committed by the two applicants and two other young males at large, the starting point should be four years instead of the five years as adopted by the judge.

Reduction for the guilty plea

17. Regarding the reduction of the sentence because of the plea of guilty, the judge said:

"10. Each Accused today entered a plea of guilty to that charge but indicated that he disputed the use of a weapon. At the end of the day, as I have indicated, I was unable to find that a weapon was used. In the circumstances I do not believe that the Accused should be deprived of the appropriate discount to which they would be entitled by virtue of their pleas today.

11. In my judgment, the appropriate discount would be one of 25 per cent. I say that because it was only today that a plea of guilty was indicated to the 1st charge [the robbery]. This was a plea that was not tendered at the first available opportunity. Indeed when the Accused appeared on the first occasion in the District Court they indicated a plea of not guilty to the 1st charge on the grounds of wrong identification. That is not a basis which has been pursued today.

12. As a result, the sentence on the 1st charge falls to be reduced by 15 months to a period of 45 months imprisonment...."

18. A reduction of one-third from the starting point to give credit to a guilty plea has been a well-settled practice in recent years. See HKSAR v Wong Ka-kuen Crim App 35 of 1998 and HKSAR v Lo Chi-yip & Another [2000] 3 HKLRD 270, at 275G-H, per Leong JA. Stuart-Moore VP also stressed at 276C-D:

"It was to the great dismay of this Court that we found ourselves yet again confronted by a judge in the District Court who had failed to accord a defendant the customary one-third discount for a plea of guilty where no good reason was shown for a departure from the practice, despite the number of times in recent months and years that this Court has had occasion to deal with the topic."

19. Stuart-Moore VP intimated that the rationale behind the adherence to this general practice was that "counsel must be able to advise their clients with full confidence as to this aspect of sentencing" (at 277A), and "it is an important rule of practice in order to achieve fairness and parity towards all defendants" (at 277D).

20. It is also pertinent to note that a failure to follow the practice would, save in most exceptional circumstances, inevitably lead to interference by the Court of Appeal, thus increasing costs and wasting resources for all concerned.

21. Regarding whether a plea is "timely" or not, Stuart-Moore VP at 276F of Lo Chi-yip stated:

"The other ground for justifying a reduced discount was said to be the late plea entered on 'the very first day of the trial'. In some circumstances, that might have been a justification for slightly reducing the discount although we do not seek to encourage that view. This will entirely depend on all the circumstances of individual cases, particularly when considering whether a plea at court on the first day of trial has been a technical manoeuvre resulting in frightened or reluctant witnesses being forced to come to court, or resulting in a prolongation of an investigation that could have been curtailed far earlier if a plea had been indicated at the first opportunity. These are examples and by no means do they provide an exhaustive list."

22. In HKSAR v Li Tak-yin, CACC 395/2002 (6 February 2003, CA, unreported), Stock JA, giving the judgment of the Court, dealt with a reduction of only 25% from the starting point for a guilty plea, where the defendant was said to have pleaded guilty at "what may well be regarded as the last possible practical time", by saying:

"12. The question of the plea of guilty and its timing is less straightforward. It is established that 'in the absence of good reason where a timely plea has been entered, a defendant is entitled to a full one-third discount.' See HKSAR v Wong Ka-kuen Cr App 35 of 1998; and see also HKSAR v Lo Chi Yip [2002] 3 HKLRD 270, 275, and HKSAR v Yeung Kin Man [2002] 2 HKLRD 821, 823.

13. The fact that a guilty plea has been tendered on the first day of trial where it could have been tendered earlier is generally not, of itself, without more, sound reason for reducing the discount normally given; although there will be cases and circumstances where a delay or last minute plea might well warrant such a reduction. In Lo Chi Yip, to which we have made earlier reference, and which concerned a plea of guilty entered by the first applicant on the first day of trial in the District Court, the Court of Appeal did not think that to be an untimely plea (see page 275H), ....

14. This is the current approach. In this particular case, the judge emphasised the fact that the plea was not entered at 'the earliest opportunity'. We accept that there have been cases in the past in which that phrase has been used, but of late the courts have rather been using the phrase 'a timely plea' and the judge's approach is one which might suggest that it is exceptional rather than normal to deduct one-third if the plea of guilty is offered on the first day of trial. We emphasise that the one-third discount is not a rigid rule, for there are instances where a lesser discount will be, and as the cases show have been, warranted, and there are many examples provided by the cases. But there should, in our judgment, be some sound reason or circumstance, over and above the mere fact that the plea is only tendered on the first day of trial ...."

23. Li Tak-yin was decided more than 6 months after the sentencing of the applicants presently before us. In our case, the judge merely said that the pleas by the applicants, which were made on the first day of the trial, were not tendered at the first available opportunity, as a basis for his not adopting the normal one-third discount. We cannot discern any reason or circumstance which would justify the normal reduction not being applied. The judge pointed out the change of stance on the part of the applicants when they on an earlier occasion before trial indicated a plea of not guilty on the ground of wrong identification but that basis was not pursued on the first day of trial and instead they chose to plead guilty. However, the applicants' pleas did not in any event qualify as "untimely", because they made no difference to the requirement for the victims to attend court to give evidence as they had to give evidence on the question whether a knife was produced in the course of the robbery, which resulted in a Newton Inquiry. The applicants were well justified in raising that question since the Inquiry was resolved in their favour. If it had been otherwise, there might have been material for the judge to consider to reduce the normal discount for plea.

Conclusion

24. For the reasons given, we are of the view that the appropriate sentence for each of the applicants in respect of the robbery should be 32 months' imprisonment, by adopting a starting point of four years which is to be reduced by one-third for the guilty plea.

25. We therefore granted the applications despite their lateness. Treating the applications as appeals proper, we allowed the appeals, set aside the sentences imposed by the judge and substituted for them a sentence of 32 months for each of the applicants on the robbery charge. The sentence imposed by the judge on each of the applicants on the unlawfully remaining offence, a consecutive sentence of 15 months' imprisonment, on which no appeal has been brought, remains unchanged. The overall sentence on each of the applicants is therefore 3 years 11 months.