HKSAR v. WONG WAI KEUNG

CACC 25/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 25 OF 2003

(ON APPEAL FROM HCCC NO. 50 OF 2002)

________________

________________

__________________

J U D G M E N T

__________________

Hon Yeung JA (giving judgment of the Court):

1. The applicant, Wong Wai-keung pleaded guilty before Deputy Judge Line in the High Court to two counts of robbery and one count of attempted robbery. He was sentenced to 7 years imprisonment on each of the counts. The judge ordered the sentence on two counts to run concurrently with 3 years to run consecutively to the sentence on the remaining count making a total sentence of 10 years imprisonment. The applicant now seeks leave to appeal against sentence.

2. The offences were all targeted at banks. On three occasions, the applicant entered banks in Kwun Tong and Tsuen Wan with hoax bombs and notes containing threatening words. He also poured thinner onto the counters in aid of his demands for money. In two of the notes, references were made to the Immigration Tower incident and Falun Gong to emphasize the hideous effect of fire.

3. On two occasions, the applicant took away cash of $23,270 and $10,400 respectively. On the other occasion, he failed to obtain any money as he was impatient and left the bank after waiting for 2 minutes.

4. The judge did not distinguish between full offence of robbery and attempted robbery which were described as equally grave. The judge took the view that the robberies were as serious as robberies of banks with imitation firearms.

5. The judge accepted that the use of hoax bombs might not lead law enforcement agencies or security guards to respond by firing real firearms in the same way as imitation firearms did, but the pouring of thinner would tilt the balance and rendered the offences in question as serious.

6. The judge appeared to have adopted a starting point of 15 years imprisonment.

7. The applicant was 44 years old and his only conviction was recorded against him when he was 22 years of age. He was then sentenced to the Detention Centre.

8. The only ground advanced by the applicant in his written application is that the sentence was excessive. Today, he show us a document in writing which sets out in details his own family backgrounds and the circumstances in which he committed the offences.

9. He says he failed in his businesses and was heavily indebted to banks and his landlord. He was unable to borrow any more money from friends and relatives to support his family, particularly his two young daughters. The suggestion is that he was forced by circumstances.

10. The applicant also emphasizes that he only used fake bombs and heavily diluted thinner as he never had any intention to harm any one or to cause any damage to properties.

11. Bank robbery is a very serious offence and as early as 1984 in AG v Man Yui-to AR 6 of 1984, this court had made the following comment:-

"The normal sentence to be expected where a person takes part in an armed robbery upon a bank or upon a jewellery or similar shop is one of twelve to fifteen years."

12. Robbery of a bank or a goldsmith shop in which firearms were involved, but not used, a starting point of 15 years is considered appropriated. (see R v Lo Kwok-hung, CACC 472 of 1991; R v Yu Wai-lam and another CACC 56 of 1991)

13. In HKSAR v Lau Oi-ming CACC 270 of 2002, the defendant pleaded guilty to 5 counts of robbery and 2 counts of attempted robbery. He entered different banks with threatening notes saying he had bombs and demanded money. He also ignited a lighter to threaten the bank staffs. On one occasion, the defendant carried a toy pistol to frighten the victims. A starting point of 20 years was considered suitable.

14. The applicant not only armed himself with fake bombs in robbing the banks, he also carried thinner and poured them onto the counters. The references to the Immigration Tower fire and Falun Gong were clearly meant to create as much fear amongst the bank staff as possible. The seriousness of what the applicant did lies in the fear that he tried to instill into the victim. The fact that only fake bombs and heavily diluted thinner were used makes little difference.

15. If the applicant actually caused explosions or fire in the course of the robberies, the starting point would have been much more than 15 years.

16. It must also be borne in mind that the applicant did not commit one isolated robbery but were involved over a period of about 9 months in two separate robberies and one attempted robbery, in each case directed at the staff working in banks.

17. The judge was entitled to conclude that the robberies in question were as serious as robberies of banks with the use of imitation firearms.

18. None of the matters put forward by the applicant, including the hardship that his family faces and the impact of the sentences on his young daughters are significant mitigating factors for the serious offences in question.

19. The starting point of 15 years is justified and the ultimate sentence of 10 years is neither wrong in principle nor manifestly excessive. We see no valid basis for interfering with the sentence imposed by the judge. The application for leave to appeal is refused