HKSAR v. CHAU PING

CACC 2/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 2 OF 2013

(ON APPEAL FROM HCCC NO. 356 OF 2011)

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the court):

Introduction

1. The applicant was jointly charged with one other defendant with one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210 and one count of burglary, contrary to section 11(1)(b) and (4) of the same ordinance.  Both the applicant and his co-accused pleaded guilty to the burglary charge and the trial in the High Court proceeded in respect of the robbery charge only.  The trial was presided over by Andrew Chan J and took place on 23, 26, 28 to 29 November 2012 and 4 and 11 December 2012.  The applicant’s co‑accused pleaded guilty to the robbery charge after the close of the prosecution case.  The applicant was convicted by the verdict of the jury.

2. In respect of the first count of robbery, the applicant was sentenced to 12 years’ imprisonment and in respect of the second count of burglary to 2 years’ imprisonment, 18 months of which was ordered to be served consecutively to the sentence on the first count.  The total sentence imposed upon the applicant was, therefore, 13 years and 6 months’ imprisonment.  The applicant now appeals against his conviction for robbery and these sentences.

3. At the hearing of his application for leave to appeal against conviction and sentence, we dismissed the applications and said we would hand down our reasons for doing so at a later date.  These are our reasons.

The Background to the Offences

4. It is important to understand at the outset that the evidence in respect of the first count was live evidence heard in the course of a full trial.  The evidence on the second count, however, was simply an agreed Summary of Facts, as is the normal course on a plea of guilty.  We draw attention to, and emphasize, this distinction because one of the grounds of appeal against sentence focuses upon the sentence imposed on one Lau Hung, another participant in the robbery that is the subject of the first count, who was sentenced to a lesser period of imprisonment from a lower starting point upon his plea of guilty.  As with this applicant on the burglary charge, his sentence for this robbery offence was based on an agreed Summary of Facts.

Count 1

5. The first count involves a robbery committed upon a family living in a 4‑storied detached house at the Peak on 18 November 2010.  This residence was occupied by a couple whom we shall refer to as Mr and Mrs B.  Also living in the house was the mother of Mrs B who was visiting her daughter, partly to assist her as she had just given birth to her first baby.

6. The prosecution case was that this robbery was committed by three persons, one of whom was the applicant, another of whom was his co‑accused, Su Hongqing, and another of whom was the person Lau Hung.

7. Within the layout of this house, Mr and Mrs B occupied the third floor, and her mother and baby were in separate rooms on the second floor.  There was a monitor installed in their bedroom and the baby’s room that enabled them to hear sounds on the second floor.  Mrs B heard some noises coming from the monitor at around 2.15 a.m.  She thought the noises were coming from the baby’s room.  As she was going downstairs, she realized that the noise was not, in fact, coming from her baby but from her mother who was crying out in the Greek language “They’re killing me”.[1]  When Mrs B reached the landing on the 2/F, three men attacked her with knives.  She tried to defend herself but it was not long before she was forced to the floor by the robbers with a knife held at her throat.

8. Having heard her screaming, her husband rushed downstairs only to be also confronted by the robbers.  He tried to defend himself by raising both his arms in an attempt to ward off the robbers.  As he was doing so one of the robbers cut his arm and as a result he suffered a deep wound which bled profusely. Eventually, Mr and Mrs B were taken to the mother-in-law’s bedroom where Mrs B managed to calm her mother down.  The couple were made to sit on the bed and at different times throughout the evening they were tied up.  Once they were subdued and had calmed down, the robbers stopped using violence and then demanded money from them.

9. One of the robbers spoke simple English and repeated the words “Money, money, money”.[2] Mr B was escorted upstairs by one of the robbers to their third floor bedroom so that he could retrieve some money from his wife’s wallet that was in her handbag.  When he could not find his wife’s handbag, he was brought downstairs and Mrs B was taken to the bedroom to locate it.  She gave them the money she had but they asked for more and Mrs B then gave them money which her husband had brought to the house.

10. When the robbers kept demanding more money, Mr B gave them his bank cards.  Mrs B was chosen by the robbers to go and withdraw money from an ATM machine as it was not practical for her husband to do so as he was still bleeding from the wound inflicted upon him by the robbers.  One of the robbers warned Mrs B not to go to the police otherwise they would kill her baby, her mother and Mr B.  Mrs B then drove alone to the closest ATM machine at No. 100 Peak Road.  There, she withdrew a total of $40,000 dollars but that was all she was able to withdraw on the cards she had.  She then drove home and passed the money to one of the robbers who were by that time collecting stolen goods.

11. Mr and Mrs B tried to persuade the robbers to leave as soon as possible as Mr B was still bleeding quite badly and was in need of urgent medical attention.  They offered the robbers their car and gave them the car key hoping to persuade them to leave quickly.  The robbers spoke to one another in Mandarin and subsequently indicated that they wanted Mrs B to drive them away.  Before leaving with Mrs B they warned her “No police” and “Kill”, pointing at Mrs B [3]. Before leaving the house, the robbers tied up Mr B, changed their clothing, removed their gloves and washed their hands.  They also collected the cigarette ends around the house and one of the robbers turned to her and said, in explanation of their actions, “No DNA”.[4]

12. They drove away and at some point they reached a petrol station where the robbers alighted from the car and boarded a taxi.  Mrs B finally stopped at a security post outside a warehouse and sought assistance.  A report was then made to the police.

13. It was an admitted fact that in the course of the robbery the robbers stole 31 individual items amongst which were 5 pairs of earrings, 2 rings, 1 necklace, 5 watches, 2 cameras, 1 camera lens, 4 notebook computers, 6 mobile telephones, 1 Bushnell brand monocular, $76,000 Hong Kong currency and a quantity of foreign currency.  The approximate total value of all the stolen property is $2,276,050.

14. The whole incident lasted from 2.15 a.m. to approximately 4.30 a.m.  The injuries to the mother-in-law and Mr B were proven by Admitted Facts.  It was admitted that the mother-in-law suffered:

(i) around a 1.5 cm deep laceration over her left thigh;

(ii) mild muscle cut with no tendon injury; and

(iii) another small laceration over her left thigh.

15. In respect of Mr B it was admitted that he suffered a deep left mid-forearm with tendon cut and was unable to extend his left wrist.  Further examination revealed a 3.5 cm cut wound over his left distal ulnar forearm and that the basilica vein was cut, as were his flexor carpi ulnaris muscle and tendon.  Emergency surgery was required to repair the tendon and muscle.  Mr B appears to have recovered from his injury.

16. The key prosecution witnesses were Mr and Mrs B but it was Mrs B who gave the most detailed account of what transpired.  In respect of some of the events, such as when she first came downstairs, when she returned to the bedroom to locate her handbag, when she went to the ATM machine and when she drove the robbers away, she was either alone with the robbers or was on her own.  As her husband was severely wounded, his involvement in the events of this terrible night was limited.

17. It was an admitted fact that Mrs B positively identified the applicant in an Identification Parade.  It was also an admitted fact that no fingerprints or DNA of the applicant were found in Mr and Mrs B’s house, their car or on any of the police exhibits.

18. The case against the applicant, therefore, stood or fell on the identification evidence of Mrs B and so, not surprisingly, this was a major area of cross-examination by her counsel who probed for any weakness in her evidence relating to her opportunity and ability to clearly observe the applicant.  Mrs B testified that the applicant did not wear anything that concealed his face.

Count 2

19. The second count involved a burglary taking place at the same development on the Peak.  The residence was occupied by a husband and wife and their domestic helper.  At about 7 a.m. on 22 March 2011, the wife was woken by her domestic helper who had found that the glass door of the terrace of the flat was open.  The door lock of this glass door was found to be damaged.  It was subsequently discovered that properties including $5,000 cash, two notebook computers, two cameras, two watches, some bank credit cards, an i-Pod, an MP3 player, a purse containing betting chips to the value of $1,000, one US$1 banknote and one banknote of Macau Patacas $20 had been stolen.

20. CCTV footage from a security camera at the estate showed two males climbing up the wall of the estate between 3.19 a.m. and 3.37 a.m. on the morning of 22 March 2011.  These two males were the applicant and his co-accused.

The Appeal Against Conviction

21. This appeal, of course, relates only to the robbery offence that is the first count.  On his appeal against conviction, the applicant was not represented and so there were no Perfected Grounds of Appeal before the Court.

22. In his Form 11, the applicant complains that the judge failed to maintain a neutral position by referring in his summing-up to facts not mentioned in the trial, thereby resulting in unfairness to the applicant.

23. In a letter to the Court dated 13 June 2013, the applicant attacked the credibility of Mrs B and the reliability of her identification of the applicant.  These complaints were repeated in greater detail in a letter that the applicant wrote to the Court on 7 October 2013.

24. At the hearing of the application, the applicant again attacked the reliability of Mrs B’s identification of him, particularly focusing on her mention of the height of the robbers which he said did not match his own height.  In fact, the applicant sought to assert that in the circumstances of this robbery Mrs B had a good opportunity to assess the height of the robbers so that this part of her evidence was reliable; but, on the other hand, given that her height assessment of the robbers did not match the applicant’s height, her identification of him must be unreliable.

25. The applicant also referred to the absence of his fingerprints or DNA on anything associated with the events of this evening and that Mrs B said one of the robbers spoke simple English whereas he speaks none.

Discussion of the Appeal Against Conviction

26. We have carefully read the summing-up bearing in mind the importance of Mrs B’s identification evidence to the conviction of the applicant.  We should say immediately that it is very apparent that the judge was similarly alert to the importance of Mrs B’s evidence and of the need to fully direct the jury on the dangers associated with identification evidence and of the care they needed to take in evaluating and assessing the reliability of it.

27. Despite the terrifying ordeal which Mrs B and her family endured, she said that after the initial confrontation with the robbers she was able to calm her family down and remain calm herself.  This no doubt contributed significantly to her ability to subsequently recall the events of this night and to identify the applicant.  Furthermore, she was closely involved with the robbers over a lengthy period of time.  In these circumstances, it was clearly open to the jury to accept and rely upon her identification of the applicant as long as before they did so they had received proper direction from the judge.

28. We are in no doubt that this is precisely what they did receive.  The judge not only directed them on the dangers of identification evidence but also on how to evaluate its reliability.  He then went on to discuss the circumstances under which Mrs B was able to observe the robbers and the opportunities she had to see their faces.

29. After referring the jury to these matters, the judge specifically addressed them on the weaknesses in the identification evidence.  His discussion of these weaknesses occupied a significant part of his summing‑up which dealt with the evidence.

30. After reading all that the judge said on this issue, there is no doubt in our minds that he gave the jury correct and full directions that clearly presented to the jury the matters they should consider when evaluating the evidence of Mrs B.  The summing-up was thorough, fair and balanced.

31. We have, of course, examined the whole of the summing-up but can find nothing in it to cause us any concern about the safety of this conviction.

32. Once it is accepted that the judge’s summing-up cannot be criticised, then all of the applicant’s complaints become simply jury matters; that is, questions of whether certain evidence is credible, whether the testimony on certain matters in reliable and ultimately what weight should be attached to particular evidence.

33. There is nothing in the applicant’s complaint that he was convicted, notwithstanding the absence of DNA or fingerprint evidence.  The absence of such evidence is of neutral probative effect for there can be many explanations why such evidence is not found.  But, here there was in fact an explanation, for Mrs B testified that the robbers wore gloves and before they left they took precautions to ensure that they left no traces of their DNA.

34. For these reasons, we found no merit in any of the applicant’s complaints and dismissed his application for leave to appeal against conviction.

The Mitigation

35. Little was mentioned of the applicant’s background by his counsel who realistically realized that it could not mitigate the seriousness of these offences.  From his criminal record, which was admitted, it is apparent that the applicant is now 35 years of age.  He is a Mainlander and he has been coming to Hong Kong from at least as early as 2001 when, shortly before his 23^rd birthday, he acquired his first conviction in a Hong Kong court.  That was for the offences of robbery, burglary and theft for which he received a total sentence of 48 months’ imprisonment.  Shortly thereafter he was also prosecuted for the Immigration Ordinance offence of remaining in Hong Kong after having landed unlawfully (“unlawful remaining”) and was sentenced to a further 15 months’ imprisonment.

36. Convictions followed in 2005 for another unlawful remaining offence and also in March 2007, October 2007 and November 2008.  The March 2007 unlawful remaining conviction was accompanied by a conviction for possession of an offensive weapon and the November 2008 unlawful remaining conviction was accompanied by a conviction for theft.  All of these convictions resulted in sentences of 18 months, 15 months, 18 months and 20 months’ imprisonment respectively.  What this criminal history reveals is not just that the applicant has repeatedly entered Hong Kong unlawfully, but also that he did so with the intention of committing crimes.

37. Given this background, it is not surprising that his counsel did not dwell on his client’s antecedents.  He advocated strongly for the judge to adopt the same starting point of 10 years’ imprisonment that was adopted by another judge in sentencing Lau Hung.  That starting point, however, did not commend itself to the judge and he indicated to the applicant’s counsel that he was contemplating adopting a higher starting point.  In response the applicant’s counsel urged consistency.

38. The applicant’s counsel accepted that there were present in this case a number of aggravating features which took it beyond the guidelines laid down in Mo Kwong-sang v R [1981] HKLR 610.  These were:

(i) the offence occurred late at night;

(ii) the robbery was planned;

(iii) the robbers were armed;

(iv) injuries  were caused to the victims;

(v) threats were made to the victims;

(vi) the applicant is a repeat offender; and

(vii) the applicant came from the Mainland to Hong Kong to commit the crimes.

39. Despite the presence of these aggravating features, the applicant’s counsel in an endeavour to find something favourable to say on his client’s behalf referred to Mr B as having apparently recovered and that after the initial violence that was prompted by a need to subdue the victims no further violence was offered to them.

40. His counsel also referred to the pending unlawful remaining prosecution that the applicant was facing and asked the judge to bear this in mind when considering the appropriate totality for these two offences.  Since being sentenced in the High Court for these present offences, the applicant has pleaded guilty in the Magistracy to the offence of unlawful remaining and been sentenced to 18 months’ imprisonment of which 9 months was ordered to be served consecutively to the sentences imposed by the High Court.  This means that he is currently serving a total sentence of 14 years 3 months’ imprisonment.

41. The judge adjourned the first sentencing hearing in order to obtain more information on the previous convictions of the applicant and his co‑accused. However, before doing so he alerted the applicant’s counsel that he was considering whether this robbery might be more similar, in terms of gravity and culpability, to an armed robbery which he said, has a guideline sentence of 12-15 years.  He was prompted to this view because of the terror to which the victims were subjected, the injuries caused to them and the duration of their ordeal.

42. On the resumed hearing, the judge revealed that he had obtained the file relating to the applicant’s 2001 robbery conviction.  It concerned a “mugging” of a woman at 9.15 in the evening.  The applicant was armed with a knife.  He snatched the victim’s handbag and when she resisted he slashed her arm.  Little else arose on this resumed hearing but the judge did correct the statement he made at the previous hearing of the tariff for armed robbery.  The 12-15 year tariff he was referring to was that for robberies involving imitation firearms.

The Reasons for Sentence

43. The judge commenced his Reasons for Sentence by describing the first count as “a very nasty robbery”, a characterization with which we fully agree. He went on to describe the various features of this robbery including the use of knives, the injuries that were caused, the threats that were made to the victims, the fact that the victims were tied up and, of course, the amount of property that was stolen.  He referred also to the fact that this terrifying ordeal for the family lasted more than two hours with more than 2 million dollars of property being stolen.  He noted that the accused before him were professional criminals.  Both accused had previous convictions.  The second accused had ten previous convictions, one of which related to robbery and one of which related to burglary.  The previous conviction for robbery involved the use of violence with the applicant slashing the left arm of the victim.

44. The judge noted that for this same offence the other participant in the robbery, Lau Hung, had been sentenced to 6 years’ and 8 months’ imprisonment on a plea of guilty.  This represented a starting point for sentence of 10 years’ imprisonment.  In sentencing this applicant, the judge made the following comment about Lau Hung’s sentence:

“In my view, 10 years is too short a sentence for this nasty robbery. I of course understand that like should be treated alike. However, in this case I have the benefit of listening to live witnesses’ evidence, which are a lot more in detail. Their evidence clearly demonstrates to me the horror that they encountered that night.”

45. In view of the aggravating features in the case and the fact that he was dealing with professional robbers, the judge concluded:

“Given all the aggravating features in this case and the two defendants’ past similar robbery convictions, I am of the view that the appropriate starting point for this robbery should be set at 12 years’ imprisonment, the top end of armed robbery, of course, bearing in mind the maximum sentence for robbery is one of life imprisonment.”

46. For the burglary offence, he adopted 3 years as his starting point and then discounted that by the usual one-third to allow for the applicant’s plea of guilty.  Accordingly, he arrived at a final sentence of 2 years’ imprisonment. He then noted that the two offences took place 4 months apart and were quite separate incidents, albeit they involved the same housing estate.  As a matter of legal principle, he concluded that the sentence for the burglary should run consecutively to the sentence for the robbery, subject of course to the totality principle.  On this issue, he then stated:

“In view of the length of sentence imposed on Count 1, I believe it is appropriate to order, out of the 2 years, 18 months to be served consecutively to the sentence imposed in Count 1.”

47. He then imposed on the applicant the sentence of 13½ years’ imprisonment.

The Grounds of Appeal

48. There are only two grounds of appeal.  The first is that the sentence of 12 years passed on the applicant and the starting point of 12 years are manifestly excessive and/or wrong in principle.  Under this ground of appeal, it is argued that there is a disparity in the sentence imposed on the other robber, Lau Hung, by another judge who adopted a starting point of only 10 years.  The applicant complained that he has a real and justifiable sense of grievance knowing that his accomplice received a sentence which was 20% less than the sentence that he in fact received.

49. The second ground of appeal is that the judge erred in law in ordering 18 months’ imprisonment for the burglary offence in Count 2 to run consecutively to the sentence imposed on the robbery offence in Count 1. It is said that the effect of this order is that 75% of the burglary sentence is to be served consecutively to the robbery sentence which, it is argued, offends the principle of totality.

Discussion of the Appeal Against Sentence

50. In their written argument Mr Phil Chau and Ms Christina Tseng for the applicant, relied very heavily upon the decision of this Court in HKSAR v Wong King Wai [2008] 3 HKLRD 293 for the proposition, derived from the English decision of R v Fawcett (1983) 5 Cr App R (S) 158 at 161, that the test to be applied in a disparity of sentence ground of appeal is:

“would right-thinking members of the public, with full knowledge of the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice?”

51. However, there is a long line of Hong Kong Court of Appeal authority dating back to R v So Hung-lee and Anor [1986] 6 HKLR 1049 which recognized that there were two factual situations which could give rise to a disparity of sentence complaint.  They can best be summarised by referring to the headnote of So Hung-lee, which states as follows:

“Where there was a disparity between sentences passed on the same occasion by the same judge, as in this case, the sentence should be varied only if it could be shown that the judge had not properly apportioned the blame between the accused. If the sentence was otherwise appropriate and the judge was under no misapprehension of the roles of the various accused the sentences should stand. Where different sentences were passed on different occasions by different judges on different accused for the same offences, then the only consideration would be whether the sentence passed on the appellant was appropriate.”

52. This decision has been repeatedly followed by this Court in such cases as HKSAR v Leung Yiu-ming and Anor [2000] 1 HKLRD 247; HKSAR v Leung Ka Lun CACC 88/2002; unreported 18 September 2002; HKSAR v Yu Pak Lun [2003] 2 HKLRD 567; HKSAR v Chow Tak Fuk CACC 428/2004, unreported 15 February 2005, HKSAR v Bunloun Jantakarn CACC 397/2007, unreported 19 August 2008, and, most recently in HKSAR v Cheng Sau Yuk [2012] 5 HKLRD 415.

53. In the Wong King Wai case the Court was dealing with the first of the So Hung-lee situations, that is a difference in sentencing by the same judge on the same occasion of different defendants.  The Court concluded that a low sentence imposed on one of the defendants was due to a serious error by the judge as a consequence of which one of the other defendants could justifiably feel aggrieved.

54. However, in the second of the So Hung-lee situations where different defendants are sentenced by different judges, judicial error by one judge which confers a windfall on one accused will not inure to the benefit of the other accused.  On this issue, Hong Kong has followed the English case of Stroud (1977) 65 Cr App R 150.  It is worth quoting a passage from Stroud as it seems to be the source of the comment that an appellate court will not interfere to replace a right sentence with a wrong sentence just to assuage the grievance felt by an offender who has received a heavier, but proper, sentence than his co-accused.  Lord Justice Roskill said of the invitation to reduce a perfectly proper sentence in order to bring it into line with an inadequate sentence:

“That, as I have already said, involves the proposition where you have one wrong sentence and one right sentence, this Court should produce two wrong sentences. That is a submission which this Court cannot accept.” [5]

55. We note that in HKSAR v Hui Sze Ping CACC 426/2002; unreported, 26 February 2003, Gall J [6], who was dealing with the second of the So Hung-lee situations, sought to reconcile the Hong Kong line of authorities with Fawcett by saying at paragraph 21 of his judgment:

“The principle set out in Fawcett is in no way inconsistent with that set out in Leung Yiu Ming. The sentence passed by a different judge would be a matter taken into account by the sentencing judge in deciding in all the circumstances of a case what was the appropriate sentence. If a right-thinking member of the public would consider the sentence with full knowledge of all the relevant facts and circumstances, on learning of the sentence, that something had gone wrong with the administration of justice, then clearly the sentence would not have been appropriate and it would be proper for a Court of Appeal to interfere with it.”

56. Whether there is a difference between the English and Hong Kong approaches and, if so, whether they can be reconciled in the way Gall J suggested is not a matter that we have to decide for Mr Chau did not dissent from the So Hung-lee line of cases and accepted that his task before us was to persuade us that the sentence imposed upon the applicant was manifestly excessive.

57. Returning then to the present case, the issue is whether the sentence that was imposed on the applicant is a proper one or whether it is manifestly excessive.

58. Before us Mr Chau accepted, as he did at trial, that there were a large number of aggravating features present in this case.  He also accepted that given the applicant’s criminal record it could be inferred that he was a professional criminal who repeatedly unlawfully entered Hong Kong for the purpose of committing crimes here.  Commendably, there was no attempt by Mr Chau to minimize the culpability of the applicant.  Realistically, he recognized that this robbery offence was one of the more serious kinds of robbery from domestic premises that would inevitably attract a sentence towards the higher end of the range.  That, of course, raised the issue of what is the higher end of the range.  Unfortunately, and precisely because this case is so bad, Mr Chau was not able to point to any comparable case of a non-firearm robbery involving domestic premises.

59. The approach that this Court takes to robbery cases was discussed in HKSAR v Man Siu Ming and Anor CACC 318/2011; unreported, 11 June 2013, where it was said at paragraphs 41-48 of the judgment:

“41. This Court has not laid down for the offence of robbery sentencing tariffs of the kind prescribed for drug offences. It has provided guidelines as to the minimum sentence that should usually be imposed in ordinary cases which do not involve the presence of aggravating features, and laid down guidelines in particular categories of robbery, and finally it has discussed what might constitute an aggravating feature and how the presence of certain aggravating features might impact on sentence. Thus, in Mo Kwong Sang v R [1981] HKLR 610 this Court said:

‘We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.’

42. The court went on to say that if the robbery involved an invasion of private premises then a sentence of 6 years is appropriate and if actual violence is applied to the victim then 7 years should be considered.

43. These guidelines were reaffirmed by the Court of Appeal in Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312. However, in that case the court was concerned at the proliferation of head-bashing robberies and felt that this type of robbery warranted a separate guideline. …

44. Other sentencing guidelines have been issued since Mo Kwong Sang. For example, in HKSAR v Pau Lai Sing [2010] 3 HKLRD 233 this Court said that for robberies of banks, jewellery shops and other establishments in possession of large amounts of cash or valuable items where the robbers used imitation firearms then the normal sentencing range was 12 - 15 years’ imprisonment. But, for other types of robberies where imitation firearms are used this Court in Secretary for Justice v Lee Chun Ho Jeef [2010] 1 HKLRD 84 said the appropriate starting point was 10 years’ imprisonment. At the extreme end of the range is the robbery of commercial premises where large amounts of cash or valuable items are present, the robbers use real firearms and engage in a gunfight with the police. In Secretary for Justice v Wong Kwong Fei & anor [1998] 1 HKC 739 the Court of Appeal said that for this kind of robbery 24 years was the appropriate starting point. This is not an exhaustive list of the sentencing guidelines issued by this Court but the examples quoted illustrate the guideline approach to sentencing that this Court has taken for the offence of robbery.

45. In addition to laying down sentencing guidelines for categories of robbery this Court has also identified factors which may be regarded as aggravating the seriousness of the offence. For example, in Mo Kwong Sang the court said that the following should be regarded as aggravating factors:

(i) invasion of domestic premises at night;

(ii) the presence of more than one person in the group of robbers;

(iii) threats made to the victim;

(iv) ill-treatment of elderly persons and children; and

(v) a multiplicity of offences of a similar kind.

46. In various cases over the years the courts have identified other matters that may be regarded as aggravating factors. In HKSAR v Lai Kam Tong and anor [2005] 1 HKC 232, the Court of Appeal said that, the fact that the robbery was premeditated and well planned was a serious aggravating factor and in HKSAR v Obiagwu Oluchukwu Christian [2011] 1 HKC 453 that the fact that the robbery was committed by a visitor to Hong Kong is also an aggravating feature. Finally, in HKSAR v Wang Wei [2010] 5 HKC 45 the Court of Appeal said where the robbery involved the theft of the victims ATM card and the extraction from him of his PIN number then this was an aggravating feature. The court went on to say at page 50G that “detention of a victim by a robber whilst his colleague goes off to secure cash from an ATM machine is a still further aggravating feature …”. Clearly, the list of aggravating factors is not closed and from time to time this Court may add to it.

47. Notwithstanding the assistance provided to trial courts by these sentencing guidelines and list of aggravating factors a trial judge still possesses considerable discretion in identifying an appropriate starting point in robbery cases. In performing this task he will have to assess the seriousness of the case before him and in this regard he may derive some assistance from the comments of the Court of Appeal in the authorities we have mentioned. They may enable him to place the case before him in a particular category or help him to identify the serious features present in the commission of the offence.

48. But the cases can do no more than point him towards a particular range of sentence; they will not, other than in the most straightforward case, dictate his starting point.  More frequently the judge will find himself guided towards a broad sentencing range within which to exercise his sentencing discretion.”

60. As we have already said, the appalling circumstances of this offence place it at the higher level of seriousness for robberies of domestic premises.  The circumstances of the offender not only disentitle him to any leniency they actually call for a sentence containing a strong element of personal deterrence; indeed such is the need for personal deterrence in respect of this offender that it would have been quite proper to have enhanced his sentence.

61. There is no doubt in our mind that this applicant and his accomplices represent a threat to the safety and security of Hong Kong residents and their property.  It is precisely by the imposition of severe sentences that the courts convey the message that persons who enter Hong Kong to prey upon its residents can expect to face condign punishment, especially where their record reveals that they are repeatedly unlawfully entering Hong Kong and doing so for the sole purpose of committing crimes here.

62. Given all the circumstances we have mentioned and given that the maximum penalty for this offence is life imprisonment we can see nothing excessive in a starting point of 12 years’ imprisonment.  The sentence imposed on this offender is not a day too long.

63. Notwithstanding the view we have reached on the starting point adopted by the judge, we do not wish it thought that we have not given consideration to the fact that another judge adopted a lower starting point for sentence.  We have and, in fact, so did the judge in this case.  But, as we pointed out earlier in this judgment, Lau Hung pleaded guilty and that would have meant he was sentenced on the basis of an agreed Summary of Facts.  There is no comparison between what is revealed in an agreed Summary of Facts and what is revealed by the evidence adduced over the course of a full trial.  The understanding and appreciation that the Court obtains of the circumstances of an offence and the impact of it on the victims is completely different in the two situations.  A Summary of Facts provides the Court with just the skeleton of the offence, often bland and lacking in detail.  It is a document whose contents are frequently the subject of negotiation and compromise as a defendant’s counsel seeks to portray his client in the most favourable light.  Through the trial process the Court has the opportunity to see the victims and hear in their own words what happened to them and what they had to endure.  This readily explains why the judge on a plea of guilty and the judge on a trial might form different views on the gravity of an offence and the culpability of an offender.  It would be rare indeed for a disparity in sentence arising in these circumstances to justify the intervention of this Court.

64. What has happened here does not allow of a disparity of sentence complaint but it does serve as a further reminder of the desirability of having all the participants in a crime sentenced by the same judge.  This Court has, over the years, repeatedly urged this be done, yet, disappointingly and frustratingly there are still occasions, such as the present one, where accomplices are sentenced by different judges.  We enquired of counsel for the respondent why this happened here and were told that though arrested and charged at different times Lau Hung could have been consolidated with his accomplices but because he indicated an intention to plead guilty, it was decided to allow him to be sentenced by another judge.  We cannot understand why such a decision was taken.  It should not have been and had it not been, this ground of appeal is unlikely to have become available to this applicant.

65. The only other ground of appeal is that the order that 18 months of the sentence for the burglary charge should be served consecutively to the sentence for the robbery charge infringed the totality principle and resulted in a manifestly excessive sentence.  The applicant says that only 12 months should have been ordered to be served consecutively; that is on a sentence of 13 years 6 months’ imprisonment it is the additional 6 months which tips the balance and causes the sentence to become manifestly excessive.

66. Mr Chau accepts that it is perfectly proper to order consecutive sentences; the only issue is how much.  The burglary offence took place at the same development in respect of an occupied residential premises.  The offence was committed by the applicant together with his co-accused in the early hours of the morning.  It was clearly planned and was committed by persons with bad criminal records who had come to Hong Kong to burgle and rob.  With all these aggravating factors present, the applicant was certainly not entitled to the sentence of 3 years’ imprisonment that is reserved for first offenders whose burglary does not involve any aggravating features.  This applicant should not have been sentenced to anything less than 4 years’ imprisonment.

67. The applicant can consider himself fortunate that the judge adopted such a low starting point.  In terms of reflecting the additional culpability, which is substantial, that is represented by the burglary offence we can see nothing excessive in ordering that 18 months of the 2‑year sentence be served consecutively.  In our view, it does not result in a crushing sentence – severe certainly, but in this case severity is precisely what is needed.

Conclusion

68. For the reasons we have given, we dismissed both the application for leave to appeal against conviction and the application for leave to appeal against sentence.

[1]   Appeal Bundle, page 87 M-N.

[2]   Appeal Bundle, page 91 H-I.

[3]   Appeal Bundle, page 99 C-K.

[4]   Appeal Bundle, page 100 B-G.

[5]   Stroud (1977) 65 Cr App R 150 at 152.

[6]   The only other member of this Court was Stuart-Moore VP.