HKSAR v. LOK KIN CHI

CACC 354/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 354 OF 2007

(ON APPEAL FROM DCCC460 OF 2007)

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J U D G M E N T

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Hon Stuart-Moore VP (giving the judgment of the court) :

1.  The applicant (D4 in the court below) was one of seven defendants who appeared before Deputy District Judge Sham when, on 2 October 2007, he pleaded guilty to a charge of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 and a charge of conspiracy to steal, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200.  On 9 October 2007, he was sentenced to imprisonment for 52 months on the robbery charge and 28 months in respect of the conspiracy to steal.  The judge ordered that 12 months of the sentence on the conspiracy charge should be served consecutively, making a total term of 64 months’ imprisonment.  In addition, the judge activated a suspended sentence of 2 months’ imprisonment, of which the applicant was in breach, and ordered that this should be served consecutively.  This brought the applicant’s sentence to 66 months.

2.  The applicant now seeks leave to appeal against his sentence on the ground that the sentence ultimately arrived at by the judge was manifestly excessive, having regard to errors in the approach taken towards finding an appropriate starting point.

The robbery

3.  On 15 May 2006, Lau Chun Fai (‘Lau’), the victim of the robbery, was employed by Ko Fai Transportation Company (‘Ko Fai’).  On that day, he and another employee, Lam Ping Yin (‘Lam’) were directed to deliver a consignment of 1,800 mobile telephones to a company in Kwai Chung.  This was being done when, in the vicinity of Kwai Tak Street in Kwai Chung, the applicant stepped into the middle of the road and stopped the van which Lau and Lam were using to make the delivery.  The applicant and another man climbed into the van and physically subdued Lau.  He was told not to struggle as they only wanted money.  One of the two men then drove the van to another location where Lau was forced into the rear of the van and was bound, gagged and blindfolded.  Some time later, he was taken to another van where he was held whilst the goods in his employer’s vehicle were off-loaded. 

4.  After the robbers had taken the consignment of mobile telephones, they fled.  Lau untied himself and found that his colleague, Lam, was beside him.  It would appear that he was also bound and gagged.

5.  Subsequently, the applicant and four others were arrested and charged with committing the robbery.  The van which was eventually used to take away the mobile telephones belonged to the applicant.  One of those charged, who pleaded guilty on the same day as the applicant, was Lam, the employee of Ko Fai who had been in the van with Lau that day.  It was accepted that Lam was the “insider” who had provided the information that led to the robbery.  Lam had, until his arrest, pretended to be a victim.

6.  The mobile telephones were valued at $1.6 million.  These have not been recovered.

7.  The judge adopted a starting point for sentence on this charge of 6 years and 6 months’ imprisonment.  He did this with reference, amongst other things, to the court’s guidelines for sentence in R. v. Mo Kwong Sang [1981] HKLR 610.  He observed that the robbery was committed by several men, albeit they were unarmed, and that the victim was not only physically subdued but was thereafter bound, gagged and blindfolded. 

8.  In addition, the judge considered that the applicant and the other participants in this robbery were themselves party to the undoubted breach of trust on the part of Lam.  The judge concluded that it was inconceivable that any of them was unaware that Lam was the “insider”.  Lam had been tied up merely to give the appearance that he was also a victim.

9.  The judge’s approach is encapsulated by the following statement given when sentencing:

“The robbery was an unarmed one but it was committed by a number of people, as can be gleaned from the facts it must have been planned carefully well in advance, for this I take 4 years as a starting point.  On the authority of Mo Kwong Sang, I increase it to 5 years for the fact that the victim was subjected to violence – he was being gagged, tied-up and blindfolded.  There are further aggravating features such as breach of trust and the un-recovered property is of high value – slightly more than 1.6 million, for each of these factors, I add 9 months on top, bringing it up to 6½ years.”

The same starting point was taken for each of the defendants and this was reduced by a third to reflect their guilty pleas.

The conspiracy to steal

10.  The other charge laid against the applicant (and four other co-defendants) alleged a conspiracy between October and early November 2006 to steal 44,000 electronic components which belonged to Sanyo Semiconductor (Hong Kong) Company Limited.  As with the robbery charge, Ko Fai was given the job of delivering the electronic products which were contained in 32 cartons.  These were to be taken from the company premises in Tuen Mun to the airport.

11.  By using forged documents, two of those charged were able to take possession of this consignment of electronic products by pretending to have been authorized by the consignee.  About an hour later, the genuine delivery workers from Ko Fai who had been instructed to take delivery of the consignment arrived and the offence was discovered.

12.  In his statement to the police, the applicant admitted his role in the agreement to steal.  Whilst the goods were initially taken in one van, the applicant’s van was used for the final stage of the theft.  The electronic components stolen were valued at $597,806.  Nothing has been recovered.

13.  Two of the applicant’s co-defendants were employees of Ko Fai and had used documents and information obtained in the course of their employment to effect this theft.

14.  The judge took a 3½-year starting point for sentence.  In doing so, he made reference to this court’s decision in HKSAR v. Cheung Mee Kiu [2006] 4 HKLRD 776.  He found that there were a number of aggravating factors.  These included the fact that the theft itself was effected by the use of inside information and false documents on the part of two of those involved.  He concluded that it was an irresistible inference that all of the defendants were party to the use of an “insider” so that the breach of trust on the part of two of the co-conspirators was, he considered, an aggravating factor in the case of the others.

15.  The judge reduced the starting point by one-third to reflect the applicant’s plea of guilty.  The applicant and his co-conspirators were each sentenced to 2 years 4 months’ imprisonment on this charge of which, in the applicant’s case, 1 year was ordered to be served consecutively to the sentence imposed for the robbery.  

16.  An additional 2 months’ imprisonment was ordered to run consecutively.  This related to a breach of suspended sentence for an offence of assault occasioning actual bodily harm.

The application

17.  So far as the starting point for the robbery sentence is concerned, Mr Dominic Yeung, in a measured and sensible submission, argued on the applicant’s behalf that there had been an element of double-counting in the approach taken by the judge.  He contended that the judge had fallen into error when he determined that the starting point should be enhanced by 9 months because of a breach of trust on the part of one member of the gang, namely, the employee of Ko Fai (Lam) who had allowed himself to be tied up in the van with the actual victim of this offence.

18.  We can indicate straightaway that this submission is soundly based insofar as it criticizes the judge’s approach to breach of trust.  There is, with respect, no such thing as a vicarious breach of trust.  However, in our view, the judge had correctly assessed the gravity of this robbery which, both in terms of its planning (including the use of an ‘insider’) and its execution, revealed a highly professional crime.  In this sense, we consider the error made by the judge, when he enhanced the sentence for what he had wrongly termed a “breach of trust” on the applicant’s part, to have been academic.  Some of the criticism made by Mr Yeung of the individual points taken by the judge as aggravating factors when assessing the starting point was technically correct but, if the judge had stood back from the case, as he should have done, and taken all the circumstances of the robbery into account, he would, we consider, have arrived at the same starting point.  The assault on the victim and his subsequent abduction were gravely aggravating circumstances and, with all the other features of the case in mind, we do not think that a starting point of 6½ years’ imprisonment can be criticized.  While the judge’s approach may have been wrong, the end result was appropriate.

19.  We also agree with Mr Yeung’s submission that it was not an aggravating feature of the case, calling for a specific enhancement of the sentence, that the police were unable to recover the goods which this gang had succeeded in stealing.  The value of the goods stolen was part and parcel of the circumstances and, whether or not those goods were recovered, this was one of the features of the case which made a high starting point a proper one.

20.  In regard to the starting point for the conspiracy charge, the judge made a similar error in approach by taking the view that this involved a breach of trust on the part of the applicant when, strictly speaking, this only applied to two of his co-defendants.  However, as with the robbery, the judge was fully entitled to find that the applicant was well aware that two of his co-defendants had inside knowledge.  Again, this was in every sense a well-planned and thoroughly professional offence aimed at stealing high-value goods.  The starting point of 3½ years’ imprisonment taken by the judge was, it seems to us, an appropriate one even though his approach contained the error we have highlighted. 

21.  The applicant was, at the time he was sentenced, 29 years old.  He did not come before the court as a person of good character and had willingly engaged in sophisticated and well-planned crimes which were intended to, and did, cause large losses aside from the considerable ordeal which the victim of the first offence would have suffered.  We should also point out, perhaps, that the judge dealt with these two serious offences, in terms of totality, by ordering that only 12 months of the sentence for the second offence should run consecutively.  He would have been equally entitled to have made the consecutive element in this sentence greater if he had made the sentence for the first offence slightly shorter.  Whichever way the case is approached, we do not regard the sentences, either individually or taken as a whole, as manifestly excessive.

Conclusion

22.  In view of the erroneous approach taken by the judge to ‘breach of trust’, we shall grant leave but, treating the hearing as the appeal, the appeal is dismissed.