HKSAR v. YIU CHI MING AND ANOTHER

CAC C 472/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 472 OF 2011

(ON APPEAL FROM DCCC NO. 639 OF 2011

AND DCCC NO. 929 OF 2011)

_______________________

BETWEEN

____________

______________________________

REASONS FOR JUDGMENT

______________________________

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.  Yiu Chi-ming (D1) and Lo Wai Hung (D2) were jointly charged with robbery (the 1^st charge). D1 was separately charged with using false instruments (the 2^nd charge), driving while disqualified (the 3^rd charge) and using a motor vehicle without third party insurance (the 4^th charge).

2.  D1 pleaded not guilty to all four charges, but was convicted by Judge Browne (the judge) in the District Court.

3.  D1 was sentenced to 6 years’ imprisonment on the 1^st charge, 9 months on each of the 2^nd charge and the 3^rd charge, and 2 months on the 4^th charge to run concurrently, making a total sentence of 6 years’ imprisonment.  The judge imposed disqualification periods of 5 years and 1 year on the 3^rd and 4^th charges respectively to run concurrently.  The judge further ordered that D1 must attend and complete a driving improvement course at his own expense before he could regain his driving license (“the re-test order”).

4.  D2 pleaded guilty to the 1^st charge and was sentenced to 4 years’ imprisonment, with 3½ years to run consecutively to the sentences that he was then serving in respect of STCC 2440/2011 and DCCC 693/2011.

5.  D2 committed an offence of false imprisonment (STCC 2440/2011) on 23August 2010 and was convicted on 15 September 2011 and sentenced to 12 months’ imprisonment on 30 September 2011.  D2 committed another offence of false imprisonment (DCCC 693/2011) on 18 May 2011 and was sentenced to 16 months’ imprisonment on 17 August 2011.

6.  D2 committed the present offence when he was on bail in respect of STCC 2440/2011 and whilst he was put on bail in respect of both STCC 2440 and the present offence, he committed the offence in DCCC 693/2011.

7.  D1, acting in person, originally only sought leave to appeal against conviction.  With leave granted by this Court at the commencement of the hearing, D1 also appealed against “the re-test order”.

8.  Mr Ira Lui, for the respondent, had fairly brought to our attention and had conceded that the judge did not have the power to make “the re-test order”.

9.  Represented by Mr Sammy WC Ho, D2 sought leave to appeal against sentence.

10.  At the end of the hearing, we dismissed D1’s application for leave to appeal against conviction and also D2’s application for leave to appeal against sentence.  We set aside “the re-test order” against D1.  We indicated that we would hand down our reasons and this we now do.

The Facts

11.  On 26 March 2011 shortly after 10 am, the victim (Yip Ka Keung) withdrew cash $440,000 from Hang Seng Bank (the bank) at Prince Edward Road West.  The bank teller put the cash into a brown envelope (the brown envelope) and gave it to Mr Yip.  Mr Yip crossed a side road next to the bank and when he was outside the 7/11 shop, he was suddenly pushed to the ground by a male from behind and another male snatched the brown envelope containing the $440,000 cash from him.  Nine $1,000 bank notes fell out of the brown envelope and scattered on the ground.

12.  The two robbers then boarded a white private car with a black bonnet, bearing registration number MA 4421 (the car), which quickly drove towards Wong Tai Sin.  Mr Yip said he chased after the car and banged on its left rear door once.

13.  The incident was witnessed by a passerby who saw two persons get out of the rear doors of the car and go towards the 7/11 shop on Prince Edward Road.  The car then drove towards the 7/11 shop with its rear doors open.  Two persons run back to the car and one of them was holding something from which bank notes were falling.  The passerby picked up nine $1,000 notes from the roadside near the 7/11 shop and handed them to police officers.

14.  Another witness saw the car and noted down its registration number.

15.  Shortly before 11 am on the same day, the car was found parking outside Kam Yau Tong Auto Services Co (the garage) in Yau Tong.  The manager of the garage said it was D1 who had earlier asked him for a tool to replace the registration number plates on the car with registration plates PB 2129, which were in the boot of the car.  The manager asked one of his mechanics to replace the plates.  According to the manager D1 also asked about repairing the damaged front bumper of the car and said that he would come back after buying another bumper.

16.  A police officer saw the car when its front number plate was being changed from MA 4421 to PB 2129.  At that time D1, wearing black sports trousers with three yellow lines down the outside of each leg, was standing near the car.  When question under caution, D1 denied driving the car or being involved in the robbery.

17.  The brown envelope snatched from Mr Yip was found in the car under the driver’s seat and it was empty.  D2’s palm print was present on the brown envelope.  The fingerprints of both D1 and D2 were found inside the car.

18.  CCTV captured D1 leaving his home at 7.12 am on 26 March 2011.  He was then wearing a pair of spectacles, a dark jacket, a pair of trousers in dark colour and a pair of dark shoes.  D1 returned to his residence at 10.37 am wearing the same clothing.  Some 12 minutes later at 10.49 am, D1 left his residence again, wearing his spectacles and the pair of dark trousers, but a light-coloured top and a pair of slippers.  D1 was also carrying a bag.

19.  CCTV outside the bank captured the car arriving outside the bank at 9.06 am with three men on board.  Two men alighted from the car at 9.19 am and walked towards the entrance of the bank.  The driver of the car, who was wearing a dark-coloured top, a pair of dark trousers with stripes on the side and a pair of dark shoes, alighted from the car at 9.50 am and boarded the car again two minutes later.  The prosecution suggested that D1 was the driver of the car.

20.  Mr Yip was seen leaving the bank at 10.15 am with the brown envelope tucked under his armpit and two men alighted from the car and ran towards Mr Yip.  One of the men pushed Mr Yip in the head from behind and after Mr Yip fell onto the ground, the other men snatched the brown envelope from him.  The car then drove to the scene of the robbery to pick up the robbers before driving off towards Kwun Tong. 

21.  CCTV footage also captured the car arriving and stopping just outside the main entrance of the garage.  D1, after alighting from the car via the driver’s door, approached the staff of the garage and pointed at the front registration plate of the car.  D1 was the only person who had alighted from the car.  About 5 minutes after D1 arrived at the garage he was intercepted and questioned by the police.

22.  After his arrest and under caution, D1 denied having driven the car and denied being involved in the robbery.  D1 was interviewed subsequently on three separate occasions.  He said the car belonged to his girlfriend who lived in Sham Shui Po and that she left it with him to sell it.  D1 also said he normally parked the car near where he lived and would allow people to view and test-drive it, but that he had never driven it himself.

23.  According to D1, a friend of his (Ah Nam) telephoned him at 7 am on 26 March 2011, asking to borrow the car and he arranged to meet him at the place where the car was parked.  He then met Ah Nam and gave him the car keys and Ah Nam drove him back to his home.

24.  D1 said he had known Ah Nam for about 7 months, but he knew neither his full name nor his exact address.  He also said it was the first time Ah Nam had borrowed the car and he asked him his purpose, but Ah Nam just said he would use it for a while.

25.  D1 then went for breakfast and returned home at 1010 to 1020 hours and at 1040 to 1100 hours the same morning, Ah Nam called again and arranged to meet D1 to return the car.  When he met Ah Nam, he noticed that the number plates of the car had been changed.  When asked why, Ah Nam said, “Er, never you mind.  It is okay, I’ll drive you down there to have it replaced”.  Ah Nam also said that the original number plates were in the boot and that he would drive D1 to find a garage to replace the number plates and have the bumper sprayed.

26.  D1 further told the police that it was Ah Nam who drove the car to Sze Shan Street which is two streets from the garage, where he told D1 to get the car fixed and the number plates replaced.  Ah Nam then stopped the car several car lengths from the garage and D1 got out and walked to the garage.  D1 said he was not sure if the car moved forward after he got off, but he was adamant that Ah Nam got out of the car and hailed a taxi to leave the scene.

27.  D1 confirmed that the original registration plates of the car were retrieved from the boot.  He also confirmed that the brown envelope was not originally in the car, but he found it next to the driver’s seat and gave it to Ah Nam who just folded it up and tucked it underneath the driver’s seat. 

28.  There was no dispute that the license of the car had expired on 18^th November 2010 and it was not covered by a third party insurance on 26 March 2011.  It was also admitted that D1 was disqualified from driving on 10 July 2007 for four years.

The Defence Case

29.  D1 elected not to give evidence and he also did not call any witness to give evidence on his behalf.  His case was that what he told the police during the interviews was correct and that he had not driven the car and did not take part in the robbery.

The Judge’s Findings

30.  The judge found that it was D1 who drove the car to the garage and that after D1 got out of the car, he was arrested.  The judge pointed out that the CCTV footage showed that the car stopped directly outside the garage and only one person got out.  The judge opined that what was required to be done to the car was just the replacement of the number plates and that D1 would have driven it away after the replacement.

31.  The judge rejected D1’s explanation that the car was driven by Ah Nam and he found that it was D1 who drove the car to the garage.  On the Admitted Facts that D1 had been disqualified from driving on 10 July 2007 for a period of four years, the judge concluded that D1 did drive a vehicle with false registration plates whilst disqualified and that there was no third party insurance.

32.  The judge rejected D1’s account that he had lent the car to Ah Nam and concluded that he was lying about it. 

33.  The judge pointed out that D1’s appearance was similar to that of the driver of the car captured by the CCTV outside the bank and noted his change of clothing captured on the CCTV at the building where D1 resided. The judge emphasized that D1 was in possession of the only set of key(s) of the car and that within 35 minutes of the robbery, D1 drove the car to the garage alone after spending 12 minutes at his residence.

34.  The judge also emphasized that D1 was keen to change the registration plates of the car immediately and was at one stage prepared to do it himself, yet he was unable to give a credible explanation for the presence of false registration plates on the car.

35.  The judge inferred that D1 was the driver of the car at the time of the robbery and he therefore convicted D1 of all four charges.

Sentence

36.  The judge pointed out that no weapon was used in the robbery and there was no invasion of private premises.  The judge also emphasized that the victim was not injured.  However, the judge took the view that it was not a usual street robbery because $440,000 was stolen.

37.  The judge, having referred to R v Mo Kwong Sang [1981] HKLR 610, took the view that a proper starting point for the 1^st charge of robbery was 6 years.  The judge also imposed terms ranging from 2 months to 9 months on the 2^nd to the 4^th charges, but ordered them to run concurrently with the sentence on the 1^st charge together with the disqualification and “the re-test orders”.

38.  As D2 had pleaded guilty to the 1^st charge, the judge reduced the 6-year starting point by one third and sentenced him to 4 years’ imprisonment.

Grounds of Appeal

39.  In his home-made grounds, D1 pointed out that the passers-by could not identify him as the robber.  He said the description of the robber given by the witnesses did not match his appearance.  He said the judge had not dealt with those issues.  He also said the victim was not telling the truth as there were contradictions and discrepancies in his evidence, yet the judge had failed to deal with the evidence fairly and properly.  He said that the judge was biased against him.

40.  D1 pointed out that his fingerprints did not appear on the brown envelope containing the $440,000 cash and that the CCTV recording did not capture his image, yet the judge appeared to have concluded that he was the person captured in the recording when the quality of the recording was poor.

41.  D1 pointed out also that his fingerprints did not appear on the steering wheel of the car and in so far as the CCTV captured the arrival of the car at the garage, D1 argued that the CCTV system could have malfunctioned.  He further pointed out that the garage people were not able to say who actually drove the car to the garage.  He said there was nothing unusual about him asking for the replacement of the registration plates when his fingerprints were not found on those registration plates.  D1 emphasized that there was no concrete evidence to prove that he had deliberately replaced the registration plates and used the false registration plates to commit the offences.

42.  D1 also emphasized that photographs taken from the CCTV recordings were of poor quality and did not show the clothing worn by the robbers clearly.  He said only the trousers of the robber were similar to those of his, but the other clothes were different.  He pointed out that the police was unable to recover the jacket worn by the robber even though they had searched all his personal belongings.  He said there was insufficient time for him to change and dispose of the jacket if he were the robber during the short period of time between the time of robbery and the time of his arrest.  He also said he would have changed the trousers which in any event were of very common style.

43.  D1 was adamant that the evidence against him was incomplete, flimsy and unreliable, yet the judge had failed to properly consider the evidence, putting more weight on the prosecution case and mentioning only briefly his explanation and defence.

44.  D1 said the conviction against him was unsafe and unsatisfactory.  Before us, D1 said he had been misled by the police when he was interviewed and that some of the answers in the record of interview did not come from him.

45.  Mr Sammy WC Ho, on behalf of D2, argued that the starting point of 6 years adopted by the judge, when it was an unarmed robbery, was manifestly excessive.  Mr Ho suggested that under the relevant authorities, the starting point for an unarmed robbery should only be 4 years.  Mr Ho referred to HKSAR v Ting Chiu & another CACC 174/2003, The Queen v Yau Kwok-tung [1987] HKLR 782, HKSAR v Lam Ka Hung CACC 294/2003 and HKSAR v Tsang Wai Man CACC 288/2006 to support his contention.

46.  Mr Ho appeared to accept that in the case of an organized and premeditated robbery involving a large sum of money with the use of a get-away car, a higher starting point of 5 years may be justified.  He referred to HKSAR v Wong Ching Chiu [2007] HKCLRT 287 which approved a 5-year starting point for the robbery of the proprietor of a boutique committed by his ex-employee together with others with the use of a get-away car.  In the robbery the victim lost $340,000 and suffered some minor physical injuries.

47.  Mr Ho submits that the proper starting point should not be more than 5 years.

Discussion

48.  At trial, it was presented to the judge as admitted facts that in all the interviews with the police, D1 answered all questions voluntarily and the records of interviews were tendered as evidence by agreement.  D1’s complaint that some of the answers did not come from him had to be rejected.

49.  There was no dispute that the victim was robbed of $440,000 just outside the bank and that the car was used by the robbers to flee the scene of the robbery. 

50.  Less than forty minutes after the robbery, D1 took the car, which had false registration plates, to the garage and asked to borrow a tool to replace those false registration plates.  D1 also asked about repairing the damaged front bumper of the car.

51.  The CCTV recording which was played during the hearing captured the car arriving at and stopping just outside the garage, and D1 was the only person getting out of the car.  He was soon arrested by the police.  D1’s explanation during the police interviews that Ah Nam stopped the car several car lengths from the garage and hailed a taxi to leave the scene was simply untrue.

52.  D1’s explanation of how the car ended up in front of the garage was unbelievable.  His other explanations were unconvincing and untested by cross-examination.  The CCTV recordings contradicted what he told the police.  The judge was right to have rejected D1’s explanations entirely.

53.  The absence of D1’s fingerprint on the steering wheel of the car did not mean that D1 was not the driver.  The suggestion that the CCTC system could have malfunctioned is far-fetched and unconvincing.  No one else could have driven the car to the garage and D1 must have intended to drive the car away after its registration plates were replaced.

54.  The judge, on the evidence, was right to find that it was D1 who drove the car with false registration plates to the garage. There being no dispute that D1 was still being disqualified when he drove the car, which was unlicensed and uninsured, D1 was rightly convicted of the 2^nd, the 3^rd and the 4^th charges.

55.  Within 40 minutes of the robbery, D1 drove the get-away car with false registration plates to the garage, asking for a tool to replace the registration plates.  D1 must be aware of the falsity of those registration plates.  D1 also asked about repairing the damaged front bumper of the get-away car.  Contrary to what D1 had submitted, what he did was highly unusual.  The brown envelope was recovered from the car.  The CCTV images of the driver of the car during the robbery matched those of D1.

56.  It was the prosecution case that D1 was the driver of the get-away car and it was not at all surprising that Mr Yip failed to identify him at an identification parade.  The absences of D1’s fingerprints on the brown envelope and on the steering wheel of the car did not mean that D1 was not the driver of the car during the robbery or that he was not involved in the robbery.

57.  The judge did not convict D1 of the robbery charge on the strength of the CCTV recordings, but only pointed out that those recordings were not inconsistent with the prosecution case against him.  The judge had carefully evaluated the CCTV recordings and had attached suitable weight to such evidence.

58.  On the evidence and in the absence of any acceptable evidence to explain, contradict or undermine the prosecution evidence, the judge was right to infer that D1 was driver of the get-away car and that he was involved in the robbery.  In our view, it was the only reasonable inference to be drawn on the facts of the case.

59.  We did not find the convictions against D1 unsafe or unsatisfactory.  We therefore dismissed his application for leave to appeal against conviction.

Sentence

60.  “The re-test order’ was made under section 72A(1)(a) of the Road Traffic Ordinance Cap 374 which empowers a court or magistrate to make a “re-test order” in relation to the offences specified in the Schedule to the Road Traffic (Driving-offence Points) Ordinance Cap 375.  Neither the 3^rd nor the 4^th charge is a specified offence and the judge was wrong to make “the re-test order” against D1.  That being the case, we set aside “the re-test order”.

61.  Mr Ho heavily relied on Yau Kwok-tung (supra)and HKSAR v Ting Chiu [2003] 3 HKLRD 378 and suggested that the usual starting point for an unarmed robbery should not exceed 4 years.

62.  This was not an armed robbery as accepted by the judge, but this was not an ordinary unarmed robbery when a robber took, from the victim, a small amount of cash and some personal properties in the street. The judge was right in saying that “this robbery was well-organised and that it was not the usual type of street robbery that so frequently comes before this court.”

63.  D2 and others targeted at Mr Yip who had just left the bank, no doubt knowing or believing that Mr Yip must have withdrawn money from the bank.

64.  It was clearly a well-planned and carefully executed robbery with the use of a get-away car that had false registration plates.  No less than three robbers were involved in the robbery.

65.  Bank robberies are particularly serious offences because banks are in possession of large amount of cash, thus offering great temptation to potential robbers.  Whilst D2 and his accomplices did not actually target the bank, the same reasoning applies as people who withdraw large sums of money from the bank are vulnerable and they, too, offer great temptation to potential robbers.  We were satisfied that robberies of victims who have just left the bank deserve greater deterrence.

66.  Although it is often said that the amount involved in the robbery is not the most important factor, but when the amount is very large and no part of it could be recovered, it is not something that the court can ignore in determining the proper starting point.

67.  Depending on the victim’s financial circumstances and the actual amount involved, the amount of the money stolen may well have different effect on the victim, whose plight should also be a concern of the courts.  Moreover, the planning and organisation for a robbery of a large amount may well be more detailed and careful than that involved in a chance robbery of a small sum.  The judge was right to emphasize that “the amount stolen was $440,000.”

68.  As pointed out by Mr Lui in his written submissions, there are no sentencing guidelines for unarmed robbery except that the starting point for unarmed robbery should be lower than that for an armed robbery.

69.  We wish to repeat the observations of Lunn J (as he then was) in HKSAR v Chui Chi-hung [2007] 2 HKLRD 409 at p 413E-F:

“As this Court has said on previous occasions the factual basis for sentence in any particular case is unique and references to judgments of this Court in other cases even if of broadly similar circumstances, but in which no guideline for sentence is articulated, is not of any particular assistance.”

70.  We would point out, however, that in unarmed robberies where the accused had a very bad criminal record or where the loss to the victim was large or where the victim was particularly weak and vulnerable, the court had adopted starting points well in excess of 4 years. (See HKSAR v Yip Wai-leung CACC 356/2008, Chui Chi-hung (supra), HKSAR v Lok Kin-chi CACC 354/2007 and HKSAR v Wong Sin-kun CACC 180/2009)

71.  We were of the view that this was a very bad case of robbery and must be dealt with seriously.

72.  D2 had many previous convictions including, robbery, drug trafficking, burglary, criminal damage, assaulting a police officer, common assault and assault occasioning actual bodily harm, unlawful sexual intercourse with a girl under 16 and false imprisonment.  Further D2 twice committed fresh offences whilst he was on bail.

73.  On the facts of the case and bearing in mind D2’s criminal record, we were not persuaded that the starting point of 6 years adopted by the judge for the robbery charge was manifestly excessive.

74.  D1 took part in the robbery and he drove the unlicensed and uninsured get-away car whilst he was disqualified.  The judge’s orders that the sentences on the 2^nd, the 3^rd and the 4^th charges were to run concurrently with the sentence on the 1^st charge was a most lenient order.

Conclusion

75.  We dismissed D1’s application for leave to appeal against conviction but allowed his appeal against “the re-test order” and set it aside.  We also dismissed D2’s application for leave to appeal against sentence.