HKSAR v. CHOW CHIU YUE

[English Translation – 英譯本]

CACC 272/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 272 OF 2006

(ON APPEAL FROM HCCC NO. 49 OF 2006)

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REASONS FOR JUDGMENT

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Hon Chu J (giving the reasons for judgment of the Court):

1.  On 19 June 2006, the Applicant pleaded guilty to and was accordingly convicted on two counts of attempted robbery. The High Court judge sentenced the Applicant to imprisonment for 5 years and 4 months on each charge, with two years of the sentence on Charge 2 to run consecutively to the sentence on Charge 1, making a total term of 7 years and 4 months.

2.  This is an application by the Applicant for leave to appeal against the sentence on Charge 1. In respect of the sentence on Charge 2, he abandoned his application for leave to appeal on 9 October 2006.

Facts of Charge 1          

3. In respect of Charge 1, the facts admitted by the Applicant can be summarized as follows.

4. On the afternoon of 13 December 2005, the Applicant gained entry into a flat in Choi Wan Estate, Wong Tai Sin, Kowloon under the pretext of checking electricity meters. At that time, there were only two young girls (PW1 and PW2), aged 15 and 10, inside the flat.

5. The Applicant obtained a screwdriver from PW1 and coaxed her into entering the toilet of the flat.

6. Inside the toilet, the Applicant asked PW1 to embrace him and threatened to rape her if she did not cooperate. PW1 cried and asked the Applicant not to harass her or PW2. The Applicant demanded 100 dollars from PW1, who replied that she did not have any money. The Applicant then ordered PW1 to ask PW2 to come into the toilet. Upon hearing this, PW1 howled. The Applicant told her that he would not harass her if she agreed to keep their conversation confidential. PW1 agreed and then the Applicant left the flat. He later returned to take away a bottle of distilled water that he had left behind and the above-mentioned screwdriver.

Sentence by the trial judge

7. The trial judge adopted a starting point of 8 years’ imprisonment and, giving a one-third discount for the Applicant’s guilty pleas, sentenced the Applicant to imprisonment for 5 years and 4 months.

Grounds of appeal

8. The Applicant’s grounds of appeal boil down to the following four aspects:

(1) The Applicant did not use violence or apply cruelty in the course of the offence. Although he verbally threatened PW1, he turned faint-hearted and felt sorry when he saw her crying in fear.

(2) The Applicant’s robbery failed not because PW1 said she did not have money. On the contrary, he could have ransacked the premises for valuables then and there.

(3) The trial judge’s starting point of 8 years is manifestly excessive and inconsistent with the sentencing guidelines laid down in The Queen v. Mo Kwong Sang [1981] HKLR 610. The Applicant points out that he did not use weapon or apply violence and that PW1 did not suffer physical injury or loss of property. He further contends that no serious consequences ensued as he pulled up at the very moment when PW1 was most vulnerable.

(4) The Applicant takes issue with the trial judge’s opinion that imprisonment did not serve to help him reform or punish him. He points out that a sentence should, apart from requiring an offender to bear the consequences of what he did, give the offender an opportunity to reflect on his wrongdoing and prevent him from getting out of touch with the society at large.

Reasons for sentence

9. According to the sentencing guidelines laid down in The Queen v. Mo Kwong Sang, the starting point for the offence of armed robbery should generally be 5 years, whereas a robbery which involves an invasion of private premises should attract a starting point of 6 years. The sentence should be increased if there are factors such as threats having been made to the victim and of the defendant having repeatedly committed offences of a similar kind.

10. In respect of Charge 1, it should be noted that the Applicant did not display any weapon or use any violence on the two girls when committing the crime. It follows that, absent other aggravating factors, a starting point of less than 5 years should be adopted. However, the Applicant did in fact invade private premises, compel PW1 to embrace him and threaten to rape her. Such conduct was not only highly indecent but also frightened PW1. These were all aggravating factors. Furthermore, the Applicant has 8 previous convictions for similar offences. In these circumstances, an increase in the sentence for Charge 1 is justified. That said, the starting point of 8 years for this charge is manifestly excessive.

11. Furthermore, the total sentence for both charges, namely 7 years and 4 months, translates into an overall starting point of 11 years for the two charges. This is manifestly excessive in the circumstances of the case.

12.  Taking into account the facts of the case and the Applicant’s extensive previous convictions in respect of similar offences, we are of the view that 5 years should be adopted as the starting point for Charge 1. This should then be reduced by one-third to 3 years and 4 months on account of the Applicant’s guilty plea.

13.  We therefore allow the Applicant’s application for leave to appeal and, treating it as the formal appeal, allow the appeal. The sentence on Charge 1 is reduced from 5 years and 4 months to 3 years and 4 months. The total sentence for the two charges is 5 years and 4 months.