HKSAR v. CHIU PING KEI

CACC 476/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 476 OF 2001

(ON APPEAL FROM HCCC No. 278/2001)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1. On 17 August 2001 the Applicant, Chiu Ping Kei, pleaded guilty before a Permanent Magistrate at Eastern Magistrates Court to three charges of robbery, contrary to section 10(1) and (2) of the Theft Ordinance. He was committed to the Court of First Instance for sentence under s.81B of the Magistrates Ordinance.

2. The Applicant reaffirmed his pleas of guilty to those three charges in the Court of First Instance on 28 September 2001 before Deputy High Court Judge McCoy SC who convicted him of them and sentenced him to consecutive terms of 4 years imprisonment in respect of each offence, making an effective total sentence of 12 years' imprisonment.

3. The Applicant now seeks leave to appeal against those sentences. Mr Michael Poll of counsel represents him.

Facts

4. The facts are simple, the Applicant admitted to committing three lift robberies. On 16 March 2001 in the mid-morning he robbed a 47-year-old housewife inside a lift in a residential building in Nathan Road, Yaumatei. The Applicant entered the lift on the 7th floor, produced a paper cutter threatened the victim and declared robbery. The victim handed over $720, a mobile phone and a Rolex watch. The Applicant then ordered the victim out of the lift, took the lift down to the ground floor and made off.

5. Twenty-five days later, on 10 April 2001 the Applicant robbed the same victim again in the same premises. The fact that it was the same victim appears to be a coincidence. He entered the lift on the 8th floor, threatened the woman with a 6-inch knife and declared robbery. On this occasion the victim handed over $220 cash and a mobile phone. The Applicant then ordered the woman to leave the lift, took the lift down to the ground floor and made off.

6. The third robbery took place 11 days later, on the 21 April 2001, inside the lift in a residential building in Portland Street, Mongkok. The Applicant entered the lift on the 8th floor and threatened a 38-year-old woman with a 7-inch knife and declared robbery. He took a mobile phone, $800 cash, a gold necklace and a gold bracelet from her. The Applicant ordered the woman to leave the lift and took the lift to the ground floor and fled.

7. On 9 May 2001 the woman whom the Applicant had robbed in the first two robberies and her 17-year-old son were taking the lift down in their building in Nathan Road, Yaumatei when the Applicant entered the lift at the 9th floor together with another man. The woman immediately recognised the Applicant as the man who had robbed her on the two earlier occasions and pointed him out to her son. The boy kicked the Applicant, who produced a 4-inch long knife, but did not say anything. The boy asked the Applicant not to hurt his mother or himself and said that they would pretend that they had never seen him. However, when the lift reached the ground floor the boy rushed down the staircase to the lift lobby, shouting out 'Robbery!' Two plainclothes police officers who were patrolling in the vicinity heard him and chased after the Applicant, who turned around and brandished his knife at them. The officers took out their truncheons and told the Applicant to drop his knife; he ignored them. One officer then used his truncheon to hit the Applicant on his right arm, which caused him to drop the knife. The police officers then subdued and handcuffed the Applicant.

8. Later, when interviewed by the police after caution, the Applicant admitted that he had committed all three robberies.

Mitigation

9. In mitigation, the deputy judge was told that the Applicant was, at the time of his arrest, an unemployed drug addict living on public assistance and that he had committed the offences to raise money to buy drugs. His counsel stressed the fact that he had admitted his offences soon after arrest and had pleaded guilty at the earliest opportunity.

Criminal record

10. The Applicant has an extensive criminal record. He is aged 56, having been born in September 1945. He has appeared in court 21 times since March 1969 and prior to this case there were 60 previous convictions recorded against him. Twenty-three are for robbery, the remainder are for drug related offences (including possession of dangerous drugs for the purposes of trafficking) larceny, possession of offensive weapons, wounding, resisting arrest and escape from prison. He admits to having been addicted to heroin since 1972. Prior to this case his last court appearance was in May 1998 in the District Court, when he was sentenced to 4 years' imprisonment for robbery. He was released from prison in November 2000. The deputy judge calculated that the total of his previous sentences of imprisonment for offences of robbery alone is 35 years.

Grounds of appeal

11. Mr Poll contends that the sentences the deputy judge passed on the Applicant were manifestly excessive in that he ignored the existing guidelines for sentence in cases involving multiple offences and failed to pay proper, or sufficient, regard to the principle of totality when ordering that the Applicant serve his sentences consecutively.

Discussion

12. In sentencing the Applicant the deputy judge said:

"Counsel accepted that the three offences are all separate and distinct, and therefore on the face of it, subject to totality, deserving of consecutive sentences. ... The starting point for lift robberies was authoritatively pronounced in R v Mo Kwong Sang [1981] HKLR 610. ... Of course, the starting point can be enhanced if there are aggravating factors present... Here, the aggravating features must include the fact that you robbed the same woman twice and that you committed three reasonably indistinguishable robberies in a short period of time. All of this must be seen against your background of identical offending spanning now three decades and more. In my view, you are a real and sustained threat to the peace and welfare of the people of Hong Kong... The fact that the purpose of a robbery was to secure money to buy dangerous drugs has never been a mitigating feature, indeed, it could be an aggravating feature (see R v Yau Kwok Tung [1987] HKLR 782 at 784A)...in my judgment the starting point on each of your offences, bearing in mind the decision of HKSAR v Wan Ho Kit, Lawrence [CACC 479 of 2000 (unreported)] should have been 6 years and 8 months on each robbery. On a consecutive basis, that would have produced a totality of 20 years' imprisonment. However, applying the totality principle, I would reduce that to 18 years and then in turn, because of your plea of guilty, reduce that totality to one of 12 years. I therefore sentence you to a term of 4 years' imprisonment on Count 1, plus a consecutive sentence of 4 years' imprisonment on Count 2, plus a consecutive sentence of 4 years on Count 3, making a total of 12 years' imprisonment in all."

13. Earlier, during an exchange with counsel for Applicant, the deputy judge remarked:

"Plainly, I have to look at the totality point closely in this case because...Mo Kwong Sang for a lift robbery suggests 6 years... We have three separate offences here. The mathematics are very simple, but that 's obviously an extremely long sentence."

14. We do not find Mr Poll's reference to earlier decisions of this court dealing with how other defendants have been sentenced for robbery to be of any value. Each case referred to us was decided on its own particular facts and none of them established any new sentencing principle.

15. This court in Mo Kwong Sang held that the appropriate sentence, after trial, in an ordinary case of armed robbery, in which the accused carried a knife, or other dangerous weapon, which he displayed to his victim, should normally be 5 years' imprisonment and that if the robbery also involved an invasion of private premises, including the common parts of private premises such as lifts and staircases - such as was the case in each of the Applicant's three offences - a sentence of 6 years' imprisonment would be appropriate. This court went on to say that those sentences should be increased if there are other aggravating factors present. Mo Kwong Sang has been followed consistently since its decision in 1981.

16. It is well established that where a judge is dealing with a persistent offender, as this Applicant clearly is, the judge is entitled to adopt a higher starting point, or pass a higher sentence on him, than would otherwise be the case so as to have a greater deterrent effect on the accused and to protect the public from the his habit of persistent offending.

17. On this in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, a case involving a persistent drug trafficker, Stuart-Moore VP said, at page 833B to 834C:

"Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant's trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he has received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none. If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.

...............

There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected."

18. See also, HKSAR v Wan Ho Kit, Lawrence CACC 479 of 2001 (unreported), which the deputy judge referred to in his sentencing remarks.

19. The deputy judge was aware of the principles in Mo Kwong Sang relating to sentencing for armed robbery and, given the facts of each offence and the aggravating factor of the Applicant's appalling criminal record, his starting point sentence of 6 years' and 8 month's imprisonment for each after trial is not inappropriate. A proper one-third discount to reflect the Applicant's guilty pleas would have reduced the appropriate sentence for each offence to 4 years and 5 months, rather than the 4 year sentence the deputy judge imposed in respect of each.

20. We turn now to the question of whether the deputy judge was correct to order that the Applicant serve his three sentences wholly consecutively. It is well established that where a judge is concerned with separate and distinct offences - as was the case here - he should normally, subject to the principle of totality, consider passing consecutive sentences, even if that results in the total length of the sentences being more than he could have passed in respect of any one of them. The question in this case is whether the deputy judge's decision to make each of the Applicant's sentences wholly consecutive to each other and thus requiring him to serve an overall term of 12 years' imprisonment resulted in him receiving a sentence that was disproportionate to his offences and thereby manifestly excessive?

21. There can be no doubt that however great the accused's criminality is; the judge has to take steps to avoid the imposition of an inappropriately crushing sentence. As Lord Widgery CJ observed in R v Faulkner (1972) 56 Cr App R 594, at page 596:

"...at the end of the day, as one always must, one looks at the totality and asks whether it was too much. In other words, the court should stand back and take a global view of the effect of the proposed sentences. If in consequence of such an exercise, it becomes apparent that the accused will face an inordinate term of imprisonment, due adjustment may be necessary."

22. In R v Wong Kwai-pui Cr App No. 522 of 1989 (unreported) Silke VP emphasised the need for the court not only to stand back, but to stand back 'far enough'. In making his evaluation the judge must consider circumstances such as the need to inhibit other persons from committing the same sort of offence, the seriousness of the individual offences, and the mitigation.

23. The best course for a judge to adopt in passing sentence in respect of multiple offences is to first decide what, in all the circumstances, including both the background of the offence and the accused, is the appropriate sentence for each offence on the indictment and then, having decided what is the appropriate sentence for each offence, consider the question of totality at the end and impose such sentence as will reflect the criminality in its entirety, taking into account the pleas and the individual circumstances of the accused - including, where applicable, the fact that he has a long record for commission of similar offences - and the fact that he is sentencing for a multiplicity of offences. See, by way of example, Lui Shu-tong v R [1961] HKLR 129; AG v Chan Piu-sang [1994] 1 HKCLR 211; AG v Au Kwok-chai [1996] 3 HKC 192 and HKSAR v Au Yeung Siu-kay CACC 276 of 2001 (unreported), decided by this court as constituted in this application. What the judge should not do is to do what the deputy judge in this case appears to have done and put the cart before the horse and decide first on the overall sentence for the various charges, and then to apportion that overall sentence as between the offences. That is the wrong approach to totality.

24. We are aware that this approach has not been followed consistently by this court. Mr Poll drew our attention to HKSAR v Wong Lou-tak [1998] 2 HKC 607, a case dealing with 20 charges of obtaining property by deception, for which the appellant had been sentenced to 20 consecutive terms of 2 month's imprisonment making a total sentence of 3 years' and 4 months' imprisonment. There it was said that if a defendant committed a series of similar offences at different times, in different places and under different circumstances, the judge should determine the sentence flexibly by first considering the most serious, or the more serious, incident of those similar offences, the number of offences committed by the defendant and the degree of their seriousness. Having considered the most serious cases in this type of offence, the maximum penalty and the sentencing guidelines and the normal sentence imposed in similar cases, the judge should then proceed to decide the starting point for sentencing for those offences. The next step was to consider the mitigating factors in order to arrive at the appropriate reduction. Finally, the totality principle should be considered to determine the total sentence. Once the total sentence had been determined, this sentence should be imposed on the defendant for each of the offences committed but should run concurrently. That decision however can be explained by reference to the particular circumstances of the case. It should be remembered that sentencing is not a science subject to immutable laws; there will be rational exceptions to every sentencing principle.

Decision

25. Although we are of the view that the individual sentences of 4 years' imprisonment for each offence are in themselves too light by 5 months; we are also, for the reasons we have given, of the view that the deputy judge's order that the Applicant serve them wholly consecutively resulted in him being required to serve a period of imprisonment that is manifestly excessive. The three robberies that he committed, whilst no doubt frightening and distressing to their victims, may be described as commonplace ones. There is nothing in their circumstances of commission that distinguishes them from the many hundreds of similar lift robberies that are, regrettably, committed in Hong Kong each year. The only thing that sets them apart is that they were committed by a persistent offender.

26. Accordingly, we grant the Applicant leave to appeal against sentence and allow the appeal. In exercise of our powers under s.83I(3) of the Criminal Procedure Ordinance, we quash the sentences of 4 years' imprisonment imposed in respect of each of the Applicants' three offences and in their place order that he serve a sentence of 4 years' and 5 months' imprisonment in respect of each. We also quash the order that he serve the sentences wholly consecutively and instead order that he serve 2 months of the sentence in respect of the second count consecutively to the sentence on the first count, the balance concurrently, and the whole of the sentence on the third count consecutively to the sentences on the first and second counts. This means that he will serve a total of 9 years' imprisonment for his three offences.