HKSAR v. LO SING CHEE (also known as LO SHING CHI)

CACC 41 /2021

[2022] HKCA 800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 41 OF 2021

(ON APPEAL FROM DCCC NO 482 OF 2020)

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J U D G M E N T

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1.  The applicant faced a single charge of robbery in the District Court, contrary to section 10 of the Theft Ordinance, Cap 210. Having pleaded not guilty to the charge, he was convicted after trial on 3 February 2021 by HH Judge Casewell (“the Judge”), and sentenced to 6 years’ imprisonment on the same day.

2.  On 15 October 2021, the applicant filed a Notice of application for leave to appeal against sentence out of time (Form XI). In his affirmation attached, the applicant explained that he originally intended to apply for leave to appeal against his conviction but after seeking legal advice, he abandoned that application which had delayed his filing of the present application. I do not accept this explanation, but will nevertheless examine his application to see if it has merit.

The facts

3.  At about 10:55 pm on 21 March 2020, when Mr Cham Man-lung (“PW1”) was closing up the 7-11 convenience store at Ground Floor, No 51 Tong Mi Road, Kowloon (“the Store”), the applicant suddenly pulled up the roller shutter and entered the Store. The applicant was clothed in a motorcycle helmet with a distinctive anime character emblazoned on it, a white windcheater, jeans and black shoes with white markings. He was also carrying a shoulder bag and wearing gloves.

4.  Suspecting that it was a robbery, PW1 locked himself in the staff room and viewed what was going on inside the Store through a one-way mirror. He saw the applicant walk up to the door of the staff room and demand that PW1 come out. The applicant then drew out a knife from his shoulder bag. Since PW1 did not come out, the applicant then went to the cashier area and stole 15 packets of cigarettes valued at $850. The incident was caught on CCTV, while the applicant’s movements after he left the Store were captured on a neighbouring CCTV.

5.  On 23 March 2020, PC 24549 (“PW2”), having earlier viewed the relevant CCTV footage, was patrolling in the subway of Cherry Street, Kowloon when he came across the applicant, whom he intercepted and arrested. Under caution, the applicant admitted that he had “robbed” the Store of 15 packets of cigarettes, all of which had been given to his friends, and asked for a chance. The stolen property was never recovered.

Mitigation

6.  The applicant was 57 years of age at the time of sentence. He had a lengthy criminal record mostly related to dangerous drugs and petty theft offences. His last conviction was for fraud in 2012. Prior to his arrest, he had been unemployed and was living alone in the subway at Cherry Street.

7.  Counsel for the applicant submitted that although the robbery was an armed one, the applicant did not pose any actual risk of violence to PW1, and no injury was occasioned. It was submitted that the applicant was an “unemployed old man” living on the street, who had been tempted to try and obtain some easy money by committing an amateurish robbery. It was argued that the seriousness of the case fell towards the lower end of the scale.

Reasons for sentence

8.  The Judge accepted that the robbery was “somewhat amateurish”[1] and that the risk posed to PW1 was “very low”[2]; nevertheless, it was still an armed robbery of a convenience store. He considered the leading authority on sentence in robbery cases, where knives or other dangerous weapons were involved, namely Mo Kwong-sang v R[3], in which the appropriate sentence for a robbery involving the carrying of a knife, which is displayed to the victim, was said to be 5 years’ imprisonment. If the robbery also involved an invasion of private premises, which included business premises, a sentence of 6 years’ imprisonment was appropriate.

9.  Having taken into consideration the applicant’s age and background, as well as the circumstances of the robbery, the Judge determined that a starting point of 6 years’ imprisonment was appropriate. Since there were no other aggravating or mitigating features, the applicant was sentenced to 6 years’ imprisonment.

Grounds of appeal

10.  The applicant asks the Court to take account of the following matters when considering his application for leave:

(a)  the Store was already closed at the material time and there were no customers inside. PW1 did not suffer injury and the Store only lost several packets of cigarettes worth a few hundred dollars;

(b)  he committed the offence under the influence of medication (although there is no evidence as to what this medication might be);

(c)  he is now 58 years old and has not committed any offence for a decade;

(d)  he has no similar previous convictions; and

(e)  he is remorseful.

The respondent’s reply

11.  Mr Michael Tsang, on behalf of the respondent, points out that the starting point was arrived at in accordance with the guidelines in Mo Kwong-sang. As for the matters set out by the applicant, he submits that acting under the influence of, for example, alcohol is generally not a mitigating factor. Even though McWalters JA in HKSAR v Tam Ping Wo Angus[4] considered that an “alcohol addiction problem” might have some value in mitigation if the applicant, under such influence, was involved in no more than “a clumsy theft”, this was no clumsy theft.

12.  The applicant pulled up the roller shutter to gain entry at the time late at night when a vulnerable convenience store was about to close; he wore a motorcycle helmet and gloves to disguise himself; he demanded that PW1 should leave the staff room and drew a knife from his shoulder bag to reinforce the demand; before going to the cashier area to take away 15 packets of cigarettes. Mr Tsang contends that the circumstances clearly showed that this was not a substance-induced “clumsy theft”, but a planned and premeditated crime. As for the other factors identified by the applicant, Mr Tsang submits that they were fully considered by the Judge.

Discussion

13.  This was obviously a planned robbery of a vulnerable convenience store late at night by someone who took the trouble to disguise himself and arm himself with a knife. However one characterises the type of premises in question, the fact is that those who work in shop premises late at night must be protected from armed robbers. The Court in Mo Kwong-sang stipulated a starting point of 6 years’ imprisonment for a defendant who commits a robbery of business premises carrying and displaying a knife. That is the sentence the applicant received after trial.

14.  Although no injuries were caused to PW1, he must have been extremely frightened to be threatened with a knife by a man whose face he could not see, and one wonders what the applicant’s purpose was in demanding that PW1 come out of the staff room. Had PW1 yielded to this demand, one does not know what might have happened.

15.  Whilst the applicant has no previous convictions for robbery or offences of violence, he does have numerous convictions for dishonesty (theft, attempted burglary and fraud) and has been before the courts on no less than 33 occasions. He says he is remorseful, yet he pleaded not guilty to the offence. In my judgment, there are no reasonably arguable grounds of appeal against this sentence: indeed, given the need to protect those working in vulnerable shops at night, the applicant may not have had any complaint if the sentence had been even higher.

16.  The applicant is advised that he has the right to renew his application for leave to appeal out of time to the Court of Appeal, but he is also warned that the Court has the power to order that any time he has spent in custody pending the appeal shall not count towards his sentence, if it were to come to the view that there was no justification for renewing the application.