HKSAR v. WONG CHING CHIU

[English Translation – 英譯本]

CACC 302/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 302 OF 2006

(ON APPEAL FROM DCCC NO. 100 OF 2006)

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JUDGMENT

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Hon Barnes J (giving the judgment of the Court):

1.  The Applicant Wong Ching Chiu was the 3^rd defendant at trial. He and two other persons (D1 and D2) were jointly charged with one count of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong. The Applicant pleaded not guilty to robbery but admitted to the wounding of the victim as particularised in the charge. The Applicant was convicted after trial and was sentenced to 5 years’ imprisonment.

2.  The Applicant applied to the Court of Appeal for leave to appeal against conviction and sentence, but his application was dismissed by Yeung JA on 13 December 2006. The Applicant now applies to the Court of Appeal for leave to appeal against sentence.

Prosecution case

3.  Mr Ng, the victim herein, was the proprietor of a boutique. One month prior to the offence, D1 became an employee of Mr Ng and, as such, came to know that there were frequent movements of large sums of cash in the course of business of the boutique, that a “reconciliation” of accounts would be carried out every week, and that it was Mr Ng’s usual practice to deposit the cash into a bank near his boutique every Tuesday. D1 had actually helped Mr Ng make deposits.

4.  D1 informed her cohabitee (i.e. D2) of the details of such deposits. D2 told D1 that he was going to rob Mr Ng with other accomplices.

5.  On the morning of the day of the offence, Mr Ng went to the bank to make a deposit, carrying with him a black carrier bag that contained $400,300 cash, crossed cheques in a total sum of $54,000 and some personal belongings. After Mr Ng had left, D1 received a call from D2 and told him Mr Ng’s movements. When Mr Ng walked past No. 666 Castle Peak Road and was about to go to a newspaper stand to buy newspapers, he was suddenly punched on the head by the Applicant and another person who is still at large. The punch caused him to fall on the ground, and his black carrier bag was snatched. The Applicant and the said other person then boarded a car driven by D2 and left the scene. The Applicant was subsequently given $60,000. Mr Ng sustained injuries in the incident.

Defence case

6.  The Applicant elected to give evidence. He did not deny that he was one of the two persons who assaulted Mr Ng during the robbery, but he claimed that he merely helped someone hit Mr Ng and he did not witness Mr Ng’s black carrier bag being snatched. Subsequent to the incident, he was given $60,000 being “travelling and general expenses”.

Grounds of appeal

7.  In his written grounds of appeal, the Applicant said:

In the High Court case cited by the lawyer who represented me, the victim was a woman who was dragged to a rear staircase, pinned down on the ground and assaulted. The case also involved two assailants, and the offence was committed in the evening. The District Court sentenced (the defendants) to 5 years’ imprisonment, and on appeal to the High Court the term was varied to 4 years. The High Court Judge also pointed out that the sentence for unarmed robbery should be 4 years, (not) 5 years. The aggravating factors in the above case were that the victim was a woman, the offence took place in the evening, she was dragged to a rear staircase where she was pinned down on the ground and beaten up, and there were two offenders. The aggravating factors in that case were more serious than those in my case. Judge Anthony Kwok took 5 years as the starting point by reason of the amount involved and the premeditated nature of the offence. However, the High Court Judge took 4 years as the starting point when the case involved more serious aggravating factors. Why is my case more serious?

8.  In his oral submissions, the Applicant stressed that the circumstances of the present case were not as serious as those of other cases, because the victims in the other cases were women who were assaulted, and the victim in one of those cases was even dragged to a rear staircase. In essence, the Applicant contended that the trial judge should not have taken 5 years as the starting point as he had not used any weapon in the case.

Reasons for sentence

9. In considering sentence, the trial judge rightly pointed out that the maximum sentence for robbery was life imprisonment. The judge took into account the cases of Mo Kwong Sang v. R. [1981] HKLR 610, R. v. Yau Kwok Tung [1987] HKLR 782 and HKSAR v. Ting Chiu [2003] 3 HKLRD 378. The Court of Appeal has said that the starting point for robbery committed in a public place without displaying any knife or dangerous weapon should be 4 years’ imprisonment, and that cases involving two or more robbers are more serious than cases involving one robber.

10. The trial judge was well aware that no weapon was produced, used or displayed during the robbery. However, he took the view that the present case was more serious than other unarmed robberies. The amount of cash involved in this case exceeded $400,000. Even though some of the stolen money had been recovered, the victim still suffered a loss of over $340,000, which was unlikely to be recovered. Moreover, the present case involved an organised and premeditated robbery as opposed to an “opportunistic” crime in which the offender simply waited for an opportunity to commit an offence in a public place. The robbery in the present case was carefully planned, and a false vehicle registration plate was used as a cover-up. Violence was used during the robbery and the victim suffered pecuniary losses as well as physical injuries. 

11. Having considered the above factors, the trial judge held that an appropriate starting point was 5 years.

12. In respect of the Applicant’s case, the trial judge pointed out that the three defendants arrived at the scene together and committed the offence. D2 was the driver, and the three of them were in fact jointly committing the offence, for which they all had to be liable. The Applicant did use violence. Even though he did not physically snatch the victim’s property, his culpability at law was similar to that of the other defendants. The trial judge noted that the Applicant had pleaded not guilty and had not shown any remorse, and in the absence of any valid mitigating factor, the trial judge sentenced the Applicant to 5 years’ imprisonment.

Discussion

13. Generally speaking, the starting point for robbery in a public place without displaying a knife or other weapon is 4 years’ imprisonment. Even though the present case did not involve an armed robbery, as the trial judge pointed out, there were a number of aggravating factors.

14. In HKSAR v. Ng Man Lung (吳文龍) CACC 451/2004, the applicant was convicted after trial on one count of robbery and was sentenced to 5 years’ imprisonment. The facts of the case revealed that a staff member of a jewellery company was robbed by the applicant and two other offenders in Causeway Bay when she was taking cash belonging the company to a bank to make a deposit. The applicant was caught at the scene and the stolen property was recovered. In determining the applicant’s application for leave to appeal against sentence, Cheung JA said:

… This is a premeditated street robbery. The Applicant is an illegal immigrant and he carried out a robbery with two other robbers in broad daylight outside the busy Times Square against the victim who was carrying cash to the bank. It is obvious that the offence was carefully planned and executed and not committed out of momentary greed. Violence was used against the victim. The robbers grabbed her by the neck and punched her face and head. The sentence imposed in the present case is appropriate and in line with the Court of Appeal’s sentencing guideline for robbery. The application for leave to appeal against sentence is dismissed.

15. The facts of the present case were in fact similar to those in Ng Man Lung except that, when compared with Ng Man Lung in which the robbery was committed by an illegal immigrant, the robbery in the present case was better-planned.

Conclusion

16.  On the facts of the present case, the sentence imposed on the Applicant is appropriate and consistent with the Court of Appeal’s sentencing guideline for robbery. The application for leave to appeal against sentence is accordingly dismissed.

Hon Tang VP:

17. I agree.