HKSAR v. SINGH GURSEVAK

CACC 139/2018

[2019] HKCA 179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 139 OF 2018

(ON APPEAL FROM HCCC NO 241/2017)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.  The applicant was charged with two counts of robbery, contrary to section 10(1) and (2) of the Theft Ordinance Cap 210, and one count of possession of an offensive weapon in a public place, contrary to section 33(1) and (2) of the Public Order Ordinance Cap 245.

2.  On 10 April 2018, the applicant appeared before Madam Justice D’Almada Remedios (“the judge”) in the Court of First Instance of the High Court and pleaded guilty to the first count of robbery.  The prosecution accepted this plea in satisfaction of the indictment and agreed to the remaining two counts being left on the court file and not being proceeded with without the leave of the court.  On 8 May 2018, the applicant was sentenced by the judge to 13 years and 3 months of imprisonment.  He subsequently filed a Notice of Application for Leave to Appeal against his sentence.

3.  At the hearing of the application we reserved our judgment which we said we would hand down in due course.  This is our judgment.

The background to the offence

4.  The Amended Summary of Facts which the applicant admitted for the purpose of sentencing revealed that on 28 June 2016 at about 7:50 pm, two South Asian males attacked PW1 who was the proprietor of the Gold Forward Exchange Shop on the Ground Floor at No 55A Tai Kok Tsui Road, Mong Kok, Kowloon.  PW1 had just finished work and was in the street locking the outer door of his shop.  He was carrying a rucksack, inside which was $350,000 in cash and other items.  Two assailants, both armed with knives, approached PW1 from behind and chopped him on his back and right lower leg as they robbed him of his rucksack.  The applicant was one of the assailants. 

5.  During the robbery one of the assailants pulled PW1’s rucksack off him, while the other raised a knife in a threatening posture.  PW1 grabbed the strap of the rucksack but, as he did so, the assailant who was pulling the rucksack off him chopped his right wrist with a knife, causing him to release the rucksack.  Both assailants then ran off with it. 

6.  Apart from the $350,000 in cash, the rucksack also contained PW1’s wallet, his Hong Kong Identity Card, Home Visit Permit, four bankcards, one Octopus card, one iPhone, one mobile phone, one charger and four keys.  The rucksack and its contents, including the $350,000, were never recovered.

7.  PW1 was bleeding profusely from his injuries and was taken to Queen Elizabeth Hospital.  Medical examination revealed that his right hand was nearly amputated at the wrist level, multiple flexor and extensor tendons were cut, a nerve was cut and he had a carpal bone fracture.  There were deep chop wounds on both calves of his legs, down to the muscle layer, and a laceration on his back.

8.  That same evening, a knife, separated into blade and handle, was found near the scene of the robbery.  The knife had PW1’s DNA on it. 

9.  The applicant was arrested 5 days after the robbery, on 3 July 2016.  At the time, he was found to be in possession of a knife with a handle wrapped with blood stained gauze.  The DNA of both the applicant and PW1 were found on this knife.

The mitigation

10.  The applicant is a single man who was 32 years of age at the time of his plea.  He was born in India and came to Hong Kong in May 2014.  He received high school education in India equivalent to Form 4 in Hong Kong.  He was a Form 8 recognizance holder.  He had two previous convictions.  The first was in 2014 for breach of condition of stay, for which he was sentenced to 2 weeks’ imprisonment, suspended for 3 years, and the second was in 2015 for theft and breach of suspended sentence, for which he was sentenced to 2 weeks and 5 days’ imprisonment.

11.  The applicant’s counsel, Mr Richard Donald, explained that the applicant had committed this offence because he was in dire need of money for an operation for his father who, in December 2017, died from the illness from which he was suffering.  He was not permitted to work in Hong Kong and foolishly resorted to easy money by helping his accomplice, a person by the name of Harjot.  He claimed he was used by Harjot and received no benefit from his participation in the crime other than a bottle of whisky. 

12.  The applicant also denied being the person who inflicted the injuries on PW1 with the knife, asserting that they were caused by Harjot.  He offered to assist the authorities in the prosecution of Harjot should this person ever be located.

13.  Mr Donald recognised the seriousness of the offence but submitted that the starting point should be around 10 years or less, referring to Mo Kwong Sang v R[1], HKSAR v Obiagwu Oluchukwu Christian[2]and HKSAR v Chu Kwok Yui[3]. 

14.  Mr Donald accepted that there should be an enhancement of the starting point because the applicant was a Form 8 holder, but submitted that the enhancement should be in the vicinity of one year, relying on the drug trafficking case of HKSAR v Shah Syed Arif [4]. 

15.  Mr Donald accepted that as the applicant’s guilty plea was entered late, after the trial date had been set but before the first day of the trial, he was not entitled to a full one third discount.  He submitted the discount for the late of plea of guilty should be between 20% and 25%.

The Reasons for Sentence

16.  The judge rejected the applicant’s claim that he did not inflict the injuries on the victim.  On the evidence, the judge found that both the applicant and his accomplice were involved in the brutal wounding of PW1.  She said that even if the serious injuries were not inflicted by the applicant, which she did not accept, this did not reduce his culpability as he was a participant in a joint enterprise crime.  The judge also said that, given the significant role played by the applicant in the commission of this crime, she found it difficult to accept his explanation that he agreed to assist his friend out of foolishness and that he was simply used by his friend and received no benefit from the crime.

17.  The judge described the robbery as being pre-planned, vicious, and cold-blooded.  The applicant and his accomplice targeted PW1 when he was at his most vulnerable; when he was by himself, with his back to the street, engaged in locking the door of his shop.  PW1 was defenceless and caught by surprise.  He was wholly unaware that the assailants were present until he felt pain on his leg.

18.  The judge noted that the knives used in the robbery were heavy and lethal with the blades alone being at least 12 inches long and with the handles they became about 16 and 18 inches long.  The chopping of PW1’s legs caused serious lacerations which were long and deep, extending down to the muscle layer.  These wounds were inflicted just before the assailants snatched at PW1’s rucksack and, the judge concluded, were a deliberate maiming of him that was done in order to prevent him from chasing after them. 

19.  The injuries to PW1’s hand were severe.  The chop to the wrist was brutal, almost amputating it.  It fractured his bones and cut through his nerves and tendons. 

20.  A victim impact report was provided by PW1 and in it he described how after the incident he suffered from nightmares and broken sleep which took time to subside.  Apart from having suffered a lot of pain and undergone multiple surgeries, PW1 is continuing to receive medical treatment.  He stated that he was gloomy about his prospects of making a full recovery.  The scars on his hand and the numbness on his calves continually reminded him of the robbery and of his suffering.  He was excessively vigilant to signs reminding him of the case.  He tensed up and had palpitations when he heard the sound of steps and stomping behind him even if they were caused by small children.  His over-reaction to certain normal life circumstances agitated and annoyed him.  He was miserable about his losses, namely, his business, physical health and sense of security in his life.  He presented with anxiety and depressive symptoms in the moderate range.

21.  The judge referred to the guideline of 5 years’ imprisonment that was laid down by the Court of Appeal in the Mo Kwong Sang case for armed robbery, in which a knife or other dangerous weapon is displayed, excluding firearms, with further years to be added if there are other aggravating factors.  The judge also referred to R v Chan Kwai To[5] and Obiagwu Oluchukwu Christian.

22.  The judge said that PW1’s injuries were extremely serious and constituted a very significant aggravating factor.  Other aggravating factors were that the knives used were lethal weapons, the robbery was akin to a bank or jewellery shop robbery and that it was bordering on an invasion of PW1’s business property, as it was on the pavement just outside those premises, and a large sum of money was taken.  The judge said that in all the circumstances of this case, and having regard to the aggravating factors, she would adopt a starting point of 15 years’ imprisonment. 

23.  In relation to enhancement for being a Form 8 holder, the judge was referred by counsel to the cases of Shah Syed Arifand HKSAR v Mahabul Alam Khan [6].  Both were drug trafficking cases.  The former involved an enhancement of 1 year on appeal on a starting point of 8 years and 2 months and the latter an enhancement of 15 months on appeal on a starting point of 12 years 7 months.

24.  When she came to the issue of enhancement, the judge said:

“… It is well settled that in certain circumstances the commission of an offence by a foreign national who is the holder of a Form 8 recognisance should be treated as an aggravating factor.

This offence of robbery committed justifies taking your immigration situation as an aggravating feature. I consider an enhancement to the starting point of 2 years’ imprisonment to be appropriate. …”

25.  The judge then said she would award the applicant a discount of 22% for his late plea.  This resulted in a final sentence of 13 years and 3 months’ imprisonment.

The Perfected Grounds of Appeal Against Sentence

26.  The Perfected Grounds of Appeal Against Sentence filed on behalf of the applicant advance only one ground, namely that:

“The sentence of 13 years and 3 months’ imprisonment was in all the circumstances manifestly excessive, in that:

(a)   The 2 years’ enhancement adopted by the learned Trial Judge for the Applicant’s immigration status was manifestly excessive.”

27.  Mr Duncan Percy, counsel for the applicant, does not criticise the starting point of 15 years’ imprisonment that was adopted by the judge.  He also accepts that the fact that the applicant was a Form 8 holder at the time he committed the offence is an aggravating factor for the purpose of sentencing.  Mr Percy’s only complaint is the amount of the enhancement that the judge allowed for this aggravating factor. 

28.  In the absence of any directly comparative authorities on the amount of enhancement for Form 8 recognizance holders who commit the offence of robbery, Mr Percy refers to four drug trafficking cases.  The respective starting points and amount of Form 8 holder enhancements of these four cases are set out in the table below. 

	Starting point	Form 8 holder enhancement
Joof Saihou [2018] 3 HKLRD 456	15 years	12 months
Dramane Mouhamed Saiti [2018] HKCA 338	15 years 6 months	6 months (Court of Appeal said enhancement could have been 18 months.)
Fitri CACC 265/2016	16 years	12 months
Muriel Correa Edward [2018] HKCFI 1706	18 years 9 months	18 months

29.  Mr Percy observes that in these cases the starting points ranged from 15 to 18 years’ imprisonment and the Form 8 holder enhancements from 12 to 18 months.  He submits that, by comparing the starting points, the culpability of the applicant could be described as being in the same category as that of Joof Saihou and Dramane Mouhamed Saiti, but less serious than that in Muriel Correa Edward.

30.  Mr Percy also refers to the Court of First Instance decision in HKSAR v Nayab Amin[7] which was a case involving an armed robbery by a number of Form 8 holders.  The total sentence for the robbery was 11 years.  The starting point was 8 years, which was then enhanced to 10 years to allow for the aggravating factors of there being 7 robbers and that it was a well‑planned robbery.  This 10 year enhanced starting point was then further enhanced by 12 months as the defendants were Form 8 holders, following the judgments of the Court of Appeal in the cases of Shah Syed Arif and Mahabul Alam Khan.

31.  Drawing upon the enhancements in all these cases, Mr Percy submits that the enhancement in respect of the applicantshould be in the region of 18 months’ imprisonment, and that the 2 years’ enhancement adopted by the judge was manifestly excessive resulting in a final sentence of 13 years and 3 months that, itself, was manifestly excessive.

The respondent’s submissions

32.  Ms Alice Chan, for the respondent, refers to the judgments of the Court of Appeal in HKSAR v Sandagdorj Altankhuyag & Anor[8]and HKSAR v Norena Gutierrez Cristhian Andres[9] for the principle that it is an aggravating factor that a defendant is a Form 8 holder if he commits a crime which would have a serious detrimental effect on the community or on Hong Kong’s reputation.  Ms Chan further submits that, while it is neither prudent nor possible to lay down guidelines, the greater the impact of the particular offence, the greater the enhancement.  She refers to the Court of Appeal’s judgment in Shah Syed Arif.

33.  In respect of this applicant, Mr Chan submits that the circumstances surrounding the commission of the offence, and the injuries caused to the victim, had caused severe damage to Hong Kong’s reputation as a safe city and international business centre.  

34.  She emphasizes the applicant’s repeated abuse of the privilege extended to him by Hong Kong.  His previous records showed that only 7 months before this robbery, the applicant had committed another offence of theft while he was subject to a suspended sentence for breach of condition of stay.  She relies on the comment by Macrae VP when giving the judgment of the Court of Appeal in HKSAR v Ali Saif [10]thatForm 8 holders must be firmly discouraged from becoming involved in serious crimes.  Adding to this, Ms Chan further submits that they should also be deterred from repeatedly betraying the trust and privilege extended to them by Hong Kong.  The enhancement of 2 years’ imprisonment is neither wrong, nor manifestly excessive.

Discussion

35.  There is no dispute in respect of the starting point adopted by the judge or in respect of the reduced discount awarded by the judge for the applicant’s late plea of guilty.  Nor is it contested that the judge was correct, in principle, to enhance the starting point to allow for the aggravating fact of the applicant being a Form 8 holder.  The only issue is whether in enhancing the starting point to allow for this aggravating factor, the amount of two years which the judge adopted, is manifestly excessive, thereby resulting in a final sentence which is manifestly excessive.

36.  This court has already decided that it should not attempt to provide guidelines on the length of enhancement for this particular aggravating factor.  In giving the judgment of the Court of Appeal in Shah Syed Arif, Macrae JA, as Macrae VP then was, said at page 675:

“34. We do not agree that this Court should attempt some form of guidelines for the enhancement of sentences which come within this category. The circumstances of each case and each individual will be different, and crimes will differ in the seriousness of their impact on the community and their effect on the reputation of Hong Kong. …

35.   We do not in the circumstances think it is either prudent or possible to issue guidelines in cases which fall into the category we have been discussing. The enhancement of sentence is best left to the discretion of the sentencing judge or magistrate. Obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.”

37.  However, as Ms Chan points out, helpful guidance on how a sentencing court should approach this particular aggravating factor was provided by Macrae VP in Ali Saif where he said:

“17. When Shah Syed Arif was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

38.  The following principles can be derived from this passage of the judgment:

(i)   the purpose of the enhancement is for the courts to “mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city”;

(ii)   the enhancement must be of such a length that it will deter Form 8 holders from becoming involved in serious crime; and

(iii)   in order for the enhancement to have a meaningful deterrent effect it generally should not be less than 6 months for serious offences.

39.  Thus, the sentencing principles that underly the assessment of the amount of the enhancement are: 

(i)   denunciation by the courts of criminal activity by Form 8 holders; and

(ii)   deterrence of all Form 8 holders from committing crimes while they enjoy the freedom to live in Hong Kong as they await the resolution of their claims.

40.  The length of the enhancement must adequately accommodate these sentencing principles.  But apart from having to accommodate these sentencing principles, how is the length of the enhancement to be assessed?  Answering this question requires that regard be had to both the contextual reality for Hong Kong of Form 8 holders and the rationale for their status being an aggravating factor.  

41.  The contextual reality for Hong Kong in respect of Form 8 holders is that the number of Form 8 holders is many thousands and that the processing of their claims can take years, indeed many years, rather than months.  During the period that they await the processing of their claim they are not permitted to work and exist on a limited welfare payment.  Finally, it is the experience of the courts that an increasing number of Form 8 holders are being prosecuted for their involvement in a broad range of criminal activity that is committed by them in the time they at large in Hong Kong awaiting the processing of their claims.  In Shah Syed Arif, Macrae JA said:

“33. We should say here that this Court has been concerned for some time by what appears to us to be the increasing prevalence of serious crimes being committed by non-refoulement claimants, in particular torture claimants. That is apparent from the weekly diet of appeals which routinely come before this Court. …”[11]

42.  The rationale for the status of a Form 8 holder being an aggravating factor was discussed by the Court of Appeal in Norena Gutierrez Cristhian Andres.  The court explained:  

“25.   By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim.  This is a risk of crime to which the Hong Kong community would not otherwise be exposed.  There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.”

43.  Of course, the amount of the enhancement will reflect the court’s assessment of the seriousness of the offence and the severity of the adverse impact that the offence has on Hong Kong.  Making this assessment will entail the court having regard to the nature of the offence, the circumstances of its commission, its actual impact on the victim, its potential impact on the wider Hong Kong community and finally its potential impact on Hong Kong’s reputation.

44.  Clearly, the more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement.  If the enhancement is to have a deterrent effect then it will usually be at least 6 months but it can, obviously, be greater than this amount and there is no reason why it cannot be greater than 18 months.  We do not wish to set an upper limit to the amount of the enhancement other than to make the obvious comments that it should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime that has been committed.  Finally, the sentencing court must always have regard to the totality principle in order to ensure that the sentence it imposes is a just and balanced one.  But, as this court pointed out in HKSAR v Lam See Chung Stephen[12], such a sentence may still be a severe one.  At paragraph 51 the court said:

“… It is clear that a just and balanced sentence is one that is not concerned solely with the rehabilitation needs of the offender but also accommodates other relevant sentencing principles, such as retribution, that is, the need to punish an offender for his misdeeds; where deterrence is needed in respect of a particular offender or offence, to appropriately deter him and others; the need to denounce the conduct and, where an offender preys upon the community, to protect it from his depredations.It is well to remember that at times a severe sentence will be an appropriate sentencing response and just because a sentence is severe does not mean that it is not just and balanced.”

45.  Mr Percy prays-in-aid cases where enhancements of no more than 18 months were made for this aggravating factor by judge’s adopting starting points similar to that adopted in respect of this applicant.  We can well understand why Mr Percy has done this.  He strives for the goal of consistency of sentencing and this is the only means available to him.

46.  But, ultimately, the fact that in other offences where the sentencing judge adopted similar starting points, the judge did not enhance the starting point by more than 1 year or by more than 18 months is simply not to the point.  What is important is consistency of approach not consistency of outcome.  The outcome will always be fact sensitive and the assessment by the trial judge will be entirely dependent upon the nature of the offence with which he is dealing, the circumstances of its commission and the judge’s assessment of the impact of the defendant’s conduct on Hong Kong and its residents.  This assessment will inevitably involve the exercise of judicial discretion. 

47.  That robbery is a very serious offence is indisputable.  That this particular manifestation of it was particularly serious is also indisputable.  So, what then of the impact of it on Hong Kong and its residents?

48.  In the present case, the impact on the community is considerable.  It goes well beyond the victim and his family and into the wider Hong Kong community.  It affects people’s sense of security, especially those who are engaged in businesses similar to the victim’s.  It affects the community’s attitudes to people of different ethnicities as they live side by side with them in a multicultural community.  It creates anxiety and distrust within a community. 

49.  The reputational damage to a city which promotes itself as a tourist destination is obvious.  But Hong Kong is more than just a city to visit.  It is a home to many in the international business community and it seeks to attract more international businesses to set up here.  In order to do that it portrays itself as a safe city for people in which to do business and go about their daily lives.  Nothing undermines that perception more than violent street crime.

50.  The impact upon the individual victim also cannot be ignored. Here the impact was enormous.  The judge’s finding that the attack on the victim’s legs was a deliberate maiming of him done in order to prevent him chasing after them was undoubtedly correct. 

51.  We take this opportunity to observe that, here, the violence inflicted upon the victim was far more than is usually encountered in a robbery and should have been the subject of a separate charge for which consecutive sentences should have been imposed.  In R v Chan Kwai To[13] Penlington JA said:

“… In A.G. v. Chan Kin-chung and anr. 1980 H.K.L.R. 642, an application for review, a concurrent sentence for wounding during the course of a robbery was made consecutive, which clearly is correct. The actual wounding, while committed during the robbery, is a separate offence and should be treated as such in the same way as an offence of rape committed during such a robbery. However as the offence of robbery requires the use or threat of force, if the violence was not serious i.e. tying up or a minor assault, the Crown may well not lay an additional charge and the degree of violence will be reflected in the sentence for the robbery.”

52.  Here, the nature of the violence was a wounding with intent to do grievous bodily harm, contrary to section 17 of the Offences Against the Person Ordinance, Cap 212, and was far too serious to be regarded as merely an aggravating factor in the robbery offence.

53.  For all these reasons, we are satisfied that in respect of the particular circumstances of this offence it was within the judge’s sentencing discretion to assess 2 years as the appropriate enhancement for this applicant and that such an enhancement did not result in a manifestly excessive sentence. 

Conclusion

54.  For these reasons, we refuse the applicant leave to appeal his sentence and his appeal is dismissed.