HKSAR v. KONG YUNG AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.389
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicants in this matter faced two charges, one of robbery and one of burglary. The robbery charge was particularized in the following way :

At the Ground Floor of No.41 Pak Tin Par Village, Tsuen Wan, robbed Kwan Chi-hung and Li Lai-kuen of HK$4,477.50, RMB21, GBP￡15, 100 Thai Bahts, three purses, a Master Card, a Diners Card and a Moneylink Card, a Tsuen King Garden Resident Card and other incidentals such as watches and jewelry. That offence occurred on 15th December 1997, but on the day before, 14th December, they were charged with burglary, having entered, as trespassers, Flat B6, Launda Garden, No.9, Hilltop Road, and stolen a waist bag, a camera, pens, watches and other household decorative items.

2. They pleaded guilty to both of those charges and was sentenced to imprisonment, overall, of six years. They now seek leave to appeal against those sentences.

3. The facts are all too familiar. The applicants were illegal entrants who, on 14th December 1997, entered the premises at Flat B6 Launda Garden and ransacked at least one of the rooms in those premises and took away the items set out in the charge. They woke a Filipino maid who was sleeping on the premises and she pressed the alarm, but they made good their escape.

4. On the following night, they entered the premises at Ground Floor, 41 Pak Tin Par Village, and a much more serious offence occurred. The householders became aware of their presence and the 1st applicant then menaced them with a fruit knife and the householders were then tied up, the telephone lines were cut and the applicants proceeded to ransack the premises. They did so for about an hour and then fled with all of the valuable properties that they could find.

5. These offences are all too common. Illegal entrants are continually entering Hong Kong and preying upon residents, particularly those who reside in border areas. It is the duty of the courts to pass sentences that will bring home to the offenders, and those who might be like-minded, that this conduct is viewed with the utmost seriousness and will be met with severe punishment.

6. The applicants suggest firstly in their written grounds, and each has filed the same grounds, that the judge failed fully to consider the fact that they had been sentenced to 15 months for their illegal entry and that they have, by the time of the sentence on these two charges, completed seven months of that sentence. The judge ordered that the sentences he was imposing be consecutive to the sentences imposed by the magistrate.

7. This was a proper order. It is the kind of order that is made in all such cases. No complaint can be made in that regard.

8. The applicants also complain that they received an excessive sentence, particularly because the judge took a starting point of eight to nine years in relation to the robbery. They say that they were not robbers who had gone out, armed with the intention of committing robberies, but were in the kitchen stealing food when they were disturbed, and that they only then took up a fruit knife because they were fearful of the consequences of discovery.

9. This is not quite correct as they having taken up the fruit knife, then proceeded to menace the householders, tied them up, cut the telephone lines and ransacked the premises.

10. The judge said, for the offence of burglary of domestic premises, the appropriate starting point is one of three years. For an offence of robbery which involves the invasion of private premises at night in which physical violence is used, the appropriate starting point is in accordance with the cases of Mo Kwong-sang and Chan Fat-keung of the order of eight to nine years. He then took into account the ages of the applicants, their previous good character and also bore in mind that they had already been sentenced to 15 months for unlawful entry. He said he would give them full credit for their pleas of guilty and went on to say-

"...In respect of the 1st charge, that's the robbery, the 1st defendant and the 2nd defendant will go to prison for a term of five years."

I will remark here that this was a substantial reduction for plea from either eight or nine years to five years. While it can certainly be said that it was a starting point at the top of the range, the eventual figure of five years arrived at by the judge was, in our view, an entirely proper sentence after plea for an offence of the seriousness of the robbery which the applicants committed. He then stated that he would reduce the sentence on the burglary charge from three years to two because of plea. He then went on to say-

"Having had regard to the principle of totality, in respect of the 1st defendant and the 2nd defendant, one year of the sentence which I impose for the burglary will be served consecutively to the sentence which I impose for the robbery, and one year ... concurrently. Those sentences will be served consecutive to the sentence imposed by the magistrate for the Remaining in Hong Kong offence. In other words, the 1st defendant and the 2nd defendant will serve a total sentence of six years' imprisonment in addition to the terms which they are currently serving...."

11. While, as we have said, the starting point for the robbery was at the top of the range, when we come to consider the final sentence imposed, we are satisfied that it was in no way too severe or manifestly excessive. The applications must therefore be refused.