HKSAR v. TAM PING WO ANGUS

CACC 73/2020

[2020] HKCA 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 73 OF 2020

(ON APPEAL FROM DCCC 135 OF 2020)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with one count of “Attempted Robbery” (“Charge 1”), contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200, and another count of “Theft” (“Charge 2”), contrary to section 9 of the Theft Ordinance, Cap 210. On 26 May 2020 he, acting in person, pleaded guilty to both counts before District Court Judge Isaac Tam (“the judge”) and was sentenced to a total term of 28 months. The judge also ordered the applicant to pay HK$1,000 for breach of a binding-over order which was operative at the time of his offence.

2.  Subsequently he filed a Notice of Application for Leave to Appeal (“Form XI”) against his sentence.  At the hearing of the applicant’s application I refused it and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The charges

3.  The summary of facts which the applicant admitted for the purpose of his sentencing revealed that at around 5 a.m. on 17 December 2019, the applicant, in a dark-colour jacket and with an umbrella, entered a 7-Eleven convenience store and took 8 cans of beer from the shelf to the cashier.  He then displayed an object wrapped by a newspaper and declared “robbery” on PW1, who was one of the storekeepers at that time.  The applicant also demanded her to take out all the cash.  At that time, PW1 believed that the object held by the applicant was a knife. She immediately grabbed her mobile phone, which the applicant demanded her to surrender.

4.  PW2, the colleague of PW1, came to the cashier and asked the applicant what he was doing.  The applicant declared “robbery” again. When PW2 pretended to press the security alarm, the applicant fled with the cans of beer.  The 8 cans of beer had a total value of HK$100. 

5.  The applicant was subsequently located by the police at the elderly home just above the convenience store in question.  After a police search of his cubicle four of the stolen cans of beer were recovered.  In the course of a cautioned video record of interview, the applicant admitted taking the cans of beer without making payment and said he had wrapped a pair of chopsticks in the newspaper, which he had then used to declare robbery to the storekeepers.    

The background of the applicant

6.  The applicant confirmed that he did not wish to say anything in mitigation.  He had a clear record although at the time of the present offence he had on him an operative binding-over order, which had been made against him on 14 August 2019 in the sum of HK$1,000 for 12 months to “keep the peace and be of good behaviour and not to commit or attempt to commit any criminal act involving dishonesty against any person”.  He confirmed with the judge that his sister would be able to pay the said amount on his behalf.     

7.  He was a 58-year-old divorcee and used to be a lawyer’s clerk.  He was living in the elderly home at the time of the offence.

The judge’s Reasons for Sentence

8.  The judge, after having regard to the facts of the case and the applicant’s antecedents, noted that whilst attempted robbery was a serious offence, only a dummy weapon was used in the present case.  That being so, the guidelines for armed robbery would not be applicable[1]. The judge also noted that no one was injured and the robbery was only an attempt.  He adopted a starting point of 3½ years for Charge 1 which became, after a one-third discount for the applicant’s timely plea of guilty, a final sentence of 28 months’ imprisonment.

9.  The judge recognised that Charge 2 was only concerned with goods of a small value and that half of them had been recovered from the applicant’s possession shortly afterwards.  He said that for this offence a starting point of 6 months’ imprisonment was appropriate which became, after discount, a final sentence of 4 months’ imprisonment. 

10.  The judge considered that a wholly concurrent sentence in respect of both counts was appropriate and so the total term of imprisonment that he imposed was 28 months.

11.  The judge also found that at the time of the offence, the applicant was in breach of an operative binding-over order and so ordered the applicant to pay HK$1,000 within 3 days.   

The grounds of appeal

12.  The applicant in his Form XI did not specify any ground of appeal but pleaded for a more lenient sentence by stating:

“This case happened only because I was under the influence of alcohol on the day of the offence. (I) hope Your Lordship/ Ladyship would (adopt) a lenient sentence. I promise not to reoffend.”

13.  At the hearing of the application the applicant promised that he would not reoffend but otherwise had nothing else to say in support of his application.

Discussion

14.  At the sentencing hearing the applicant chose not to advance any mitigation notwithstanding that he was invited by the judge to do so.  He now claims that he committed the offence whilst under the influence of alcohol.  Even though the offence was committed at 5 am I will assume that this claim may be true, given that in his antecedent statement the applicant claimed that he had an “alcohol addiction problem”.

15.  However, this feature might well have had considerable mitigating value if the applicant had been involved in no more than a clumsy theft of some cans of beer.  But he was not.  He committed a robbery which he had clearly planned as he prepared a dummy weapon to use in it.  By that weapon he intended to put the staff of the 7-Eleven store in fear and sought to obtain from his robbery, in addition to the cans of beer, whatever money was in the cash register.  The fact that he may have been motivated by an addictive compulsion cannot, in those circumstances, be a mitigating factor.

16.  In relation to Charge 1, the judge correctly directed himself in accordance with On Ling and found that the guidelines for armed robbery would have no application in this case where a dummy weapon was used.  For unarmed robbery the starting point will generally be no more than 4 years’ imprisonment.[2]  However, 4 years is not to be regarded as the “normal” sentence for an unarmed robbery.  In HKSAR v Thapa Min Bahadur[3] the Court of Appeal said:

“… We do take issue with the Judge when he said ‘the normal sentence for offences of this kind where no weapon is used is a sentence of 4 years’ imprisonment’ ([16] of the Reasons for Sentence). There is a range of sentence within which the sentence appropriate to the particular circumstances of the individual case is to be chosen. …”

17.  In my judgment the applicant has no valid complaint in respect of his sentence for Charge 1.  In this respect I note that the judge did not treat as an aggravating feature the fact that the robbery took place at a convenience store in the early hours of the morning, against two storekeepers, one of whom was a woman.  

18.  I am satisfied that it is not reasonably arguable that for Charge 1, a starting point of 3½ years’ imprisonment is manifestly excessive.  Nor is it reasonably arguable that for Charge 2 a starting point of 6 months’ imprisonment is manifestly excessive.

19.  Given that the judge ordered the two offences to be served concurrently, the issue of totality does not arise in this application.

20.  Lastly, the applicant’s commission of the present offences plainly amounted to a breach of his 12-month binding-over order and the judge had rightly ordered him to pay HK$1,000 for his breach. 

Disposition

21.  For these reasons I refused the applicant his application for leave to appeal against his sentences.  I informed the applicant of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal has the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.