HKSAR v. CHAU CHUN YEE

HCCC264/2001

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H E A D N O T E

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Criminal sentencing - foreignness of defendant as mitigation factor - relevant principles

Criminal sentencing - robbery plus theft by forced provision of PIN number for cash cards - consecutive sentences

The defendant robbed a woman in domestic premises in the middle of the night. By threat he also obtained the PIN number for her cash cards. He tied her up and gagged her and shortly thereafter withdrew $10,000 in four transactions at three separate banks using the credit cards, before being arrested. The defendant had come from the mainland on a two-way permit only 5 1/2 hours earlier. He asked for a reduction in sentence on the ground that he was a foreigner.

FOR REFERENCE

HCCC264/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO.264 OF 2001

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RULING ON “FOREIGNNESS” AS A MITIGATION FACTOR
AND
REASONS FOR SENTENCE

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1. Over 20 years ago, on 2 September 1981, the Court of Appeal pronounced sentencing guidelines in relation to cases of robbery : R. v. Mo Kwong Sang [1981] HKLR 610. My duty is to apply those guidelines to the accused. His case is distressingly familiar.

2. At about 0415 hours on 1 May 2001, the accused by a window entered the 2nd floor flat in Nga Tsin Wai Road, Kowloon City and robbed the sole occupant, a 40-year old woman, who generally lives alone. She was sleeping. He picked up a pair of scissors which he found in her flat, put his arm around her neck and threatened her with the scissors. In the result, she was robbed and property was taken from her.

3. But what is an unusual factor and, in my judgment, an aggravating factor, is that he had only come to Hong Kong, from China, on a two-way permit, 5 1/2 hours earlier. He arrived at 2245 hours on 30 April 2000 and at 0415 hours on 1 May 2000, he was already committing the serious crime of robbery. It was a very frightening crime - the very type of crime that the people of Hong Kong fear. It creates terror in its victim and the friends, relatives and neighbours of the victim.

4. The proper inference is that he came here to our part of China to specifically commit serious crime. He targeted the people of Hong Kong. He did not so much commit crime while he was here, as much as came here to commit crime.

5. Applying Mo Kwong Sang, seven years' imprisonment as a starting point for armed robbery is appropriate where, as here, physical violence was used, as he tied up the victim's hands and put a jacket over her head.

6. But as he also gagged her mouth, tied up her legs with a cord, in terrifying circumstances in the middle of the night, in what should have been safe domestic premises, a starting point of seven years is insufficient. These aggravating features plus the fact that he had deliberately come to Hong Kong to commit crime, and had done so within 5 1/2 hours of his arrival deserve a starting point of eight years and three months. He had previous convictions in Hong Kong, but I do not, of course, sentence him for them, but they show that he has been here three times, under three different names, and each time has committed serious crime. After he tied up the victim, he then ordered her to divulge the PIN number of her four credit cards which he had taken from her handbag in the course of his robbery. He made his escape with some items of value and in the space of 12 minutes between 0430 to 0442 hours, he withdrew $10,000 from her accounts, using the PIN number, in four separate transactions at three different banks. Fortunately, the police were commendably vigilant, they arrested him and recovered the $10,000 belonging to this poor woman.

7. In R. v. Sun Sheung Chung, Cr App 152/1993, 15 October 1993, Bokhary JA (as he then was) delivered the judgment of himself, Yang CJ and Bewley J. That case had broadly comparable features : a robbery, the demanding of PIN numbers and the taking of property. There, the Court of Appeal, said this :

"... There was, as we have noted, the taking from the victim of her bank cash withdrawal card. Where bank account-operating material is extracted along with other property, then this is the position. First, the potential for loss of the victim is increased, possibly very considerably. Secondly, the potential for gain to the criminal is correspondingly increased. Thirdly, the sense of violation suffered by the victim is, it is not difficult to imagine, heightened. And, fourthly, the period and scope of the criminal activity involved is extended.

This 'bank account' feature, as we will term it, is appearing with mounting and alarming frequency in robbery offences against householders and others. The time has come to warn malefactors - and this warning will become more and more firm as time passes if this sort of things continues unabated. Such a feature is a considerable element of aggravation; and it will attract additional punishment as a result."

I intend to apply that approach to your case.

8. In his excellent address in mitigation, Mr Ernest Koo for the accused commended a number of features. Firstly, the fact that you had pleaded guilty. He also asked for me to reduce the sentence on the basis that you are a Chinese national and that you will suffer because of the fact you will inevitably be separated from your wife and three year-old daughter. Clearly these are matters you would have had in mind when you came here to commit crime. You are an old-hand in Hong Kong - you have been in our prisons before.

9. However, the argument raised is one that must be examined closely. It is a valid and long-time paradox of the law that to sentence every person who commits the same offence in the same way to the same sentence may not, necessarily, be to treat them the same. That approach would provide macro-equality but it may fail to take into account individual circumstances. Clearly equality before the law is a vital constitutional principle and so is consistency in punishment.

10. In 1984, Sir Anthony Mason, a Justice of the High Court of Australia and now a Non-Permanent Judge of the Court of Final Appeal of Hong Kong, said in R. v. Lowe [1984] 58 ALJR 414 at 415 :

" Just as consistency in punishment - a reflection of the notion of equal justice, is a fundamental element in any rational and fair system of criminal justice, so, inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

11. Consider the example of two people who both commit the same offence and who do not know each other at all. Both offences are virtually identical; indistinguishable in any way other than as to the places of ordinary residence of the offenders. One of the defendants "A" is a Chinese permanent resident of the HKSAR, whose family also live here. He speaks, reads and writes Chinese and all his friends are here. The other "B" speaks neither English or any Chinese dialect comes from an obscure country on the other side of the world and has no realistic prospect of ever being visited by friends and family. Is the law to mechanically sentence them to identical terms of imprisonment, or is it a valid mitigating factor (the significance of which still has to be assessed), that subjectively and objectively "B" may demonstrably suffer significantly more than "A"?

12. On one view, this potentially exacerbated imprisonment is self-induced and no account should be taken of this factor as it would amount to an undeserved reduction in the proper sentence. On the other view, the first approach begs the question, because the proper sentence should be based on an individualized ascertainment of the proper sanction, including all the circumstances of the offender. To sentence both offenders to the same sentence may counter-intuitively create an unfairness by that very equality of treatment.

13. As I said, equality before the law is a basic constitutional principle. But if "B" will qualitatively suffer significantly more during the same period of incarceration that both he and "A" undergo for the identical crime, because "B" will be in contrast deprived of the interaction from friends and relatives (which is established to be an important rehabilitative component), then should the law make some very minor adjustment to "B"'s sentence, to reflect that in reality, as a function of punishment, "B" will undergo a more aggravated tenure of imprisonment than "A" - all other constants remaining equal? If it is established that a prisoner will suffer deprivation significantly more than a notional comparator, who by contrast does not lack for access from friends and relatives and will not be linguistically or culturally exiled, then objectively and subjectively he will suffer more, which is, unless properly taken into account, itself a breach of the guarantee of equality before the courts.

14. Both counsel today have made helpful and detailed submissions on the proper approach. I am more than unusually grateful to them. However, in my judgment, the inquiry is not about "foreigner" versus "local" at all. That is polarisation by classification. The true enquiry is only about the circumstances of the offender - wherever he or she is from - the predictable effect of the sentence on an individual. It is quite understandable that previous cases have dealt with the issue in terms of "foreigners" as people within that class are more likely to provide a poignant example of the issue than a reference to a Hong Kong resident. But ultimately, it is only an analytical technique to make reference to a "foreigner". The real issue, in my judgment, is not the mechanical attribution of labels to a person - a certificate of origin - but a close specific analysis, leading to an individualized sentence.

15. It is intended that a person sentenced to imprisonment will suffer, as the primary purpose of imprisonment is punishment. But the law may take into account as a minor adjustment if a disproportionately harsh effect will flow from the sentence, otherwise to have been imposed.

16. What are the various implications relied upon? I prefer to compendiously describe them as the "dislocation factor" and all must be cumulatively assessed. They are potentially : language, culture, diet and lack of contact from friends and relatives. The approach to the dislocation factor and how it should be evaluated was first dealt with in Hong Kong as far back as 1969 in a magistracy appeal, in R. v. Lorraine Mary Langridge, Cr App 631/1969, Rigby J, the Senior Puisne Judge, but later the Chief Justice, was dealing with a drug trafficking case involving a female of Australian nationality who had lived in Hong Kong for some 21/2 years before she committed the offence. On appeal, counsel suggested that for her, imprisonment would be a particularly invidious, lonely and unhappy position but that judge said a court is not entitled to expect to apply a more lenient sentence merely by reason of the fact that a person comes from another country or from a different environment.

17. In R. v. Ralph William Partridge [1977] HKLR 89, Yang J (as he then was) in a magistracy appeal, relating to bigamy said at page 91 :

"... There cannot be one standard of sentence for one particular race or races and a different standard for another race...."

18. The Court of Appeal first dealt with this issue in 1980 in R. v. Shah Kishore Kumar, Cr App 179/1980 (Li JA, O'Connor and Power JJ), again a drug trafficking case. The applicant was an Indian national and asked for a reduction in sentence on the ground that he could not speak English or Chinese. O'Connor J for the Court of Appeal said :

"... That is true, such a person is not entitled to expect a more lenient sentence. However a sentence for the same term may in effect bear down more heavily on a person who comes from abroad and therefore be harsher and we think that this is a material factor to be borne in mind in passing sentence, a factor which may carry more or less weight depending upon the circumstances of the case...."

19. The next case chronologically was R. v. Garry La Verne Ohmert, Cr App 213/1985 (McMullin and Li VPP, Yang JA), again a drug trafficking case. Ohmert, an American citizen, asked for a reduction in sentence. McMullin VP said :

"... that in general is not a circumstance which the court will take into account in mitigation to any substantial degree."

20. In R. v. Mohamed Yaqoob Raj Mohamed Shipra [1988] 2 HKLR 493 (Cons VP, Kempster and Power JJA), again a drug trafficking case, the Court of Appeal reviewed the earlier jurisprudence and concluded that the position in Ohmert was to be preferred to that of Kumar. That is, the "dislocation factor" is a matter not entitled to any great weight. In R. v Venatius Okoye, Cr App 405/1990 (Silke VP, Power and Penlington JJA), again a drug trafficking case, the same point was raised in argument but was abandoned by counsel when it appeared to find no favour with the court in view of Shipra's case.

21. In Attorney General v. Pedro Nel Rojas [1994] 2 HKCLR 69 (Silke and Macdougall VPP, Bokhary JA), again a drug trafficking case, the Court of Appeal considered the authorities and stated at 73 :

"that it is not a factor entitled to any substantial weight although it is something to be considered in determining the totality of the sentence."

The Court discouraged a sentencer specifically identifying the amount of reduction that had been granted for the dislocation factor.

22. In R. v. Okorie Remigius Chika Nwafor, Cr App 89/1993 (Bokhary JA, Barnett and Stuart-Moore JJ), again a drug trafficking case, Stuart-Moore J (as he then was) referred with apparent approval to Ohmert and stressed that :

"... is not a circumstance which the Court will take into account in mitigation to any substantial degree."

23. In R. v. Frank Oweh, Cr App 208/1994 (Macdougall VP, Penlington and Liu JJA), again a drug trafficking case, the court per Penlington JA referred to Ohmert and said :

"... We do not consider that the factor of being a foreigner called for any reduction in the sentence passed by the trial judge...."

24. In R. v. Botero Ruiz Conde Edgar, Cr App 22/1997 (Power VP, Mayo JA, Wong J) again a drug trafficking case, counsel for the applicant submitted that inability to speak either English or Chinese would mean that the imprisonment would be more burdensome than would otherwise be the case. The Court of Appeal, speaking by Mayo JA (as he then was) said this :

"In this connection although this is a factor which should have been weighed by the judge we do not think that it would have materially affected the sentence imposed."

25. In Secretary for Justice v. Akira Sugiyana, Application for Review 4 of 1996 (Power VP, Stuart-Moore and Seagroatt JJ), a commercial crime case, Stuart-Moore J (as he then was) at page 12 said in relation to a Japanese national that :

"Little weight however, could be attached to the difficulties which he might encounter within the prison regime due to language."

26. In HKSAR v. Vhemy Axel-Supardi, Cr App 12/2000, Leong JA (now the Chief Judge of the High Court) delivered the judgment of himself, Mayo VP and Ribeiro JA, again a drug trafficking case, reviewed the authorities and said that the dislocation factor was an aspect for consideration but for which no stated specific discount should be made in the sentencing process.

27. The final decision of the superior courts is HKSAR v. Rohrer [2001] 3 HKC 371 decided on 21 August 2001 by the Court of Appeal. The Court of Appeal (Mayo VP, Keith and Woo JJA) was dealing with a person who had pleaded guilty to using counterfeit passports and travellers' cheques. The court concluded that some sentencing deduction should be made on account of his Swiss nationality as the Applicant might find himself isolated linguistically and culturally and having to face an unfamiliar diet, and be deprived of the opportunity of visits from his family and friends (But Europeans do tend to be polyglots.) Keith JA said at 376 H :

"... The fact that prison could for these reasons be a harsher regime for a prisoner to endure is a factor which can, in an appropriate case, justify some reduction in the length of any sentence of imprisonment imposed...."

The court went on to reduce the sentence in that case by three months on account of this criterion which the sentencing Judge, District Judge Wong, had taken into account, but had evaluated as having no merit.

28. In his very helpful written argument, Mr Cheung for the prosecution has brought to my attention statistics which show that as of 14 September 2001, 12,497 people were in prison custody. Some 4,445 of the total penal population were prisoners who were not Hong Kong residents and 3,253 of those prisoners were from the mainland. This demonstrated that 1,192 prisoners were non-Hong Kong residents who were not from the Mainland.

29. The Correctional Services Department has a basic job requirement - all their staff receive compulsory Putonghua training. Regular counselling services and welfare assistance are also provided to prisoners by the Prisoner Welfare Officers, who are fluent in Putonghua. I note from the Prison Rules that there are a number of specific rules dealing with diet. For example, Rule 8 of the Prison Rules Cap 234 expressly provides that where a superintendent is satisfied that circumstances exist that warrant the provision of a diet that differs from the normal prison diet to a prisoner, he may direct that the prisoner eat a different diet. Rule 8(2) provides a right of appeal to the Commissioner of the Correctional Services Department if the superintendent declines to provide a different diet on proper justifiable reasons and that even a further appeal if necessary, to the Secretary for Security, may be brought from the decision of the Commissioner : Rule 8(3).

30. Prison is a place for punishment - it is not designed to be a holiday camp. But there are a number of other Rules which complement Rule 8 that show that the Correctional Services Department treats prisoners with great care and respect in relation to the dislocation factor. The Medical Officer can direct a different diet if that is also required : Rule 32. There are specific rules in relation to the weighing and measuring of the food : Rule 33. Chief Officers have specific obligations in relation to food : Rule 118. In my judgment, diet is wholly unlikely to provide a valid basis for any reduction in sentence as a single factor.

31. Prisoners are entitled to communicate by letter with friends, loved ones and indeed others on virtually an unrestricted basis : Rule 47. There are rights to visitors : Rule 48. They may have newspapers, journals and magazines provided in their own languages : Rule 56. Every prison has a library : Rule 55. Well intentioned and good people may visit prisoners as part of the systematic welfare rehabilitation exercises. Chaplains, Prison Visitors, Visiting Justices and others, may see prisoners in the system : Rules 167, 222, 223, 230, 236. These are all relevant counter-balancing factors.

32. Mr Cheung submits that for this accused, a Chinese national, he is physically and psychologically in his own country. As a Chinese national, he would have no difficulty at all in assimilating to prison life. Indeed, he has previous experience of it in Hong Kong. Volunteers and non-government organisations are specifically invited to and do provide support for prisoners having no next-of-kin in Hong Kong. These wonderful people regularly conduct prison visits. They communicate with prisoners and are a source of warm human contact. They are there to do all they can to soften, where appropriate, the hard, understandable edge of prison life. Prisoners have, as I said, a virtually unrestricted right to communicate by letter with their friends and loved ones in whichever part of the world they may be. Indeed, I have been told today, that even supervised telephonic communication is possible, in unusual circumstances.

33. Mr Cheung accepts that it is highly improbable that this accused's wife will be able to visit him. He also submits, however, that it is simply a factor. He says and, in my view, quite correctly, that when all these factors are weighed together, the dislocation factor is not a matter that the court should give any weight to at all, in the circumstances of this man. In my judgment an overall evaluation of the cumulative effect of the dislocation factor is required, to look at one facet in isolation is unreal. Further, the countervailing circumstances must be assayed.

34. Hong Kong is constitutionally a part of China. The issue of "foreigners", in my judgment, is not an issue of dictionary definition. It is a matter of substance and reality and it would be extremely difficult indeed, for any mainland Chinese resident, whether of Han origin or otherwise, to successfully demonstrate that that the person will suffer substantially increased hardship under the prison regime in Hong Kong. The dislocation factor would have to be exceptionally strong before any possible reduction in sentence could be given for that aspect of mitigation, in future.

35. Mr Cheung was unable to produce any English authorities on this issue. That does not surprise me as in my independent research, I have not been able to find that this issue has been entertained by the English courts. However, in New Zealand and Australia, the matter has fallen for consideration. In R. v. Ahlquist [1989] 2 NZLR 177, the New Zealand Court of Appeal rejected an appeal by a Swedish prisoner who had pleaded guilty to drug trafficking there. Hardie Boys J delivering the judgment of the Court of Appeal said :

"... In some cases of course, imprisonment in a far country can be a much harsher penalty for a foreigner than it is for a local resident."

But the court refused to countenance any reduction at all for this factor, stating at page 179 that such a reduction was wrong in principle and could not be justified. The court had earlier stated that it :

"... should not make a differentiation in sentence as between such people and ordinary residents of this country. To do so, that is in any way to treat people coming from overseas more favourably, would simply be to encourage them."

36. In Australia in R. v. Blanco Bello Ferrer-Esis [1991] 55 A Crim R 231, the New South Wales Court of Appeal dealt with this issue. Hunt J delivering the reserved judgment of himself, Gleeson CJ (now Chief Justice of Australia) and Lee CJ at Common Law, said that it was inevitable that foreigners or people from outside Australia would be isolated somewhat from outside contact but the court said at page 239 that it was not a matter of any great importance, at most a minor factor, not entitled to "very much weight".

37. I do note that in R. v. Nitin Giri and Ivesh Karki [1999] 109 A Crim R 499, Studdert J sitting as a sentencing judge in the New South Wales Supreme Court at page 505, distinguished the earlier case of Ferrer-Esis for two reasons : firstly, in that case, the prosecution conceded that some reduction should be made, and secondly, that Ferrer-Esis was a case where the prisoner had come to Australia for the purpose of committing the crime, drug trafficking at the airport, factors that were not present in Giri and Karki.

38. In my judgment, a number of consequences flow from the approach by which I shall direct myself.

(A) In only very exceptional cases will an offender be able to demonstrate that it is more likely than not that the offender will suffer significantly increased hardship by the term of imprisonment, because of the dislocation factor. Rohrer must have been such a case.

(B) Unless it is accepted to have been established by the prosecution, then the offender will need to prove, on the balance of probabilities, this mitigation factor, a bare assertion of anticipated deprivation will not do. I note that the Executive always has the power to modify a sentence of imprisonment imposed by the courts if humanitarian reasons ultimately require that course.

(C) In my judgment, the issue is not one of "foreign" or "otherwise". It is not about preferential treatment - something the court will never countenance. It is a perfectly valid paradox that equality of the law may, in some extreme cases, only be achieved by some minor reduction in what would otherwise have been a proper sentence, to compensate for the significantly enhanced or unacceptably disproportionate effect of the sentence on the individual offender, because of the dislocation factor.

(D) Any such reduction should be minor. As the Court of Appeal said in Ohmert and Shipra and other cases this is a matter of no great weight. If it would be otherwise, it could be misconstrued as a differential incentive for non- residents to commit crimes here.

(E) Following the decisions of the Court of Appeal, I conclude that the sentencer should not specify what deduction has been made for the dislocation factor, but should only state that it was taken into account or not in determining the actual sentence imposed, where this factor has been relied upon in mitigation. That approach has the imprimatur of the Court of Appeal in A.G. v. Rojas and the recent decision of the Court of Appeal in HKSAR v. Axel-Supardi.

(F) It may be some classes of offence, for example drug trafficking, where because of the duty Hong Kong has to the rest of the world, that the dislocation factor should, on a proper analysis, be given no weight at all. It does not fall for me to decide that issue here but I would tentatively conclude that drug trafficking, organized serious crime and corruption cases must be in the same way dealt with on this issue as immigration offences, where this potential element of mitigation carries no weight. Of course, it would be an unhappy irony if an offender who breached the immigration laws, could thereupon claim a dislocation factor reduction, for being a non-resident.

(G) Again, if the dislocation factor is established, a court may also, on proper analysis, give those factors no weight, such as where a person has deliberately come to Hong Kong to commit a crime in contrast to a person who, while in Hong Kong, commits a crime.

(H) Mainlanders are not "foreigners" as the same flag flies over China and the HKSAR : HKSAR v Ng Kung Siu [2000] 1 HKC 117 (CFA). Linguistically, culturally, psychologically and constitutionally they are in their own country; just in our part of it. But I stress that that conclusion (are not foreigners) is not only not dispositive of the issue but tends to obscure it. This is because, of course, just as with anyone, whether they are from Hong Kong or non-residents of Hong Kong, sentencing is fundamentally a focus on the individual, whatever his or her provenance.

(I) On proper analysis, in my judgment, the issue of "foreigners" or "not", is an emotive distraction. The exclusive true issue is about the correct equalized sentence for that individual in his circumstances.

(J) I am not sitting in this jurisdiction on review or appeal from any other court's decision. I am articulating the sentencing principles I am applying for this case. But, with great respect, if District Judges or Magistrates have interpreted the decision in Rohrer, the Swiss national case, as being authority for (a) semi-automatic entitlement to discounts for non-residents of Hong Kong including Mainland Chinese, or (b) as being authority for sizeable reductions, from what is otherwise a proper sentence, then I do, with respect, specifically disapprove of those suggested sentencing principles as being wrong in law.

39. It follows that in this case, despite the persuasive submissions of Mr Koo, who presented his case with skill that I evaluate that there is no proper basis on which I can give any reduction to this accused for being a non-resident of the HKSAR. I stress that this approach, of doing what is right for the individual, is not some new radical development. It is old-fashioned justice in which the personal circumstances of the individual are assessed. The focus is implicative of the appropriate sentence for that accused.

40. I turn now to my decision in relation to the accused. As I said some time ago, I will follow the principles in Mo Kwong Sang. However, I see this as an aggravated case. The accused is a multiple offender. I apply the principle of Sun Sheung Chung which suggested that consecutive sentences should follow in relation to the additional theft counts which flowed from his earlier robbery, separated in real terms only a few minutes apart, but I do take into account the totality principle.

41. On Count 1, the robbery, for the reasons (including the aggravating features) that I have earlier stated, the starting point is a term of eight years and three months' imprisonment. On Counts 2 and 3, the first two theft charges, I would have sentenced the accused to concurrently nine months' imprisonment on each count. On Counts 4 and 5, the last two theft counts, I would have sentenced the accused to six months' imprisonment, but they are to run concurrently. However, Counts 2 and 3 will run consecutively to Counts 4 and 5 and Counts 2 and 3 will run consecutively to Count 1. Therefore I would have sentenced the accused to a total of nine years and six months' imprisonment, but in view of his plea of guilty, I reduce the totality by one third. I have already indicated that other factors advanced as mitigation have been considered and do not merit, on a proper evaluation, any reduction.

42. I sentence the accused, therefore, to an effective total of six years and four months' imprisonment. On Count 1, the accused will serve 5 years 6 months' imprisonment; on Counts 2 and 3, the accused will concurrently serve six months' imprisonment and on Counts 4 and 5, the accused will concurrently serve four months' imprisonment, the sentence on Count 1 will be consecutive to that on Counts 2 and 3 which is itself consecutive to Counts 4 and 5, a total of 76 months' imprisonment.