HKSAR v. MUHAMMAD WAQAS AND ANOTHER

CACC 392/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 392 OF 2012

(ON APPEAL FROM HCCC NO. 36 OF 2012)

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BETWEEN

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Hon Stock VP (giving Reasons for Judgment of the Court):

1.  On 12 July 2013 we dismissed applications for leave to appeal sentences imposed by Deputy Judge Wright in the Court of First Instance on 17 September 2012 in respect of two applicants who pleaded guilty to two offences of robbery, the first on 22 January 2011 and the second on 14 March 2011. We said we would provide our reasons later and this we now do.

2.  Each robbery was carried out at the same place and visited upon the same individual victim.

3.  We gratefully adopt the judge’s summary of the facts relating to each offence;

“The first related to robbery of a 53-year-old female around 4 am on 22 January last year in a convenience store attached to a petrol station in the New Territories.

On that occasion the two of you entered the store and from the Summary of Facts which you have agreed the 1st accused produced a knife which he held against her neck. That knife had been carried with the two of you to carry out this robbery, having been obtained early in the evening from the 2nd accused’s home. Whilst it was not a particularly sophisticated robbery, these facts demonstrate that it was a pre-planned robbery.

The lady concerned was told to open the till but was unable to do so. The 1st accused gave the knife to the 2nd accused so that the threat continued towards the lady whilst he, the 1st accused, succeeded in opening the till. All the money in the till, amounting to $2,400, was taken together with a number of packets of cigarettes before the two of you ran off.

…

A few weeks later, at around 1 am … the two of you again committed robbery. A singular feature is that you robbed the same store and the same woman.

The Summary of Facts which you both agreed recorded,

‘At around 1 am on 14 March 2011, D1 and D2 entered the store. D2 declared robbery to Madam Tai. He further said to Madam Tai that he would not rob after this one and told her to take out all her properties. She was scared and did not make any response.’

Once again, 1^st accused, you went to the till … and took out on this occasion $1,690.  You also took 26 packets of cigarettes.  The two of you then fled.”

4.  The first applicant was aged 17 years at the date of these offences but was not a person of previous good character in that in July 2009 he was convicted of theft and put on probation and in July 2010 was sentenced to 7 days’ imprisonment suspended for 12 months for breach of his probation order.

5.  The first and second offences spanned the second applicant’s 18^th birthday.  He too was not a person of previous good character having been sentenced in June 2011 for an offence of an entirely different nature for which he was placed on probation for 12 months.  In March 2012 he was made the subject of a training centre order in relation to a robbery committed after the two offences with which we are concerned.

6.  A third person was indicted in relation to the first robbery.  He pleaded not guilty, was tried and acquitted.  Both the present applicants had provided non-prejudicial statements implicating that third person, who was allegedly the lookout, but only the first applicant was chosen by the prosecution to testify.  At the trial he did not come up to proof and was treated as hostile because he said that the accused had only been told that there would be a burglary.

7.  Against this background the judge adopted an approach based on the guidelines in Mo Kwong Sang [1981] HKLR 610.  In relation to the first of the two offences he noted that this was a robbery in which a knife was displayed, which would warrant a starting point of five years’ imprisonment.  Since in addition the robbery was committed in private premises which for these purposes include business premises, six years was appropriate; whereas, in addition still, the use of physical violence upon the victim warranted a starting point of seven years’ imprisonment; and the judge then noted that: “the court [in Mo Kwong Sang] went on to say these suggested sentences should be increased if there are other aggravating factors.  Among these, although the list is not exhaustive, are invasion of domestic premises during the night, the presence of more than one person in the group of robbers, threats made to victims,” and other matters.  He specifically refused to draw a distinction on account of the fact that the nocturnal invasion of premises was not one of domestic premises.  He noted that the applicants knew full well that the female attendant was in the premises and alone and that the knife was not only produced but was actually held against her throat and was exchanged between the two applicants to ensure that the threat to her continued.

8.  In relation to the first count he took as a starting point a sentence of 8 years’ imprisonment.

9.  In relation to the second count he took the same starting point despite the fact that no weapon had been produced or used.  This too was an offence committed in the dead of night and the fact that the knife was not on this occasion used was in his judgment of no consequence because these were the same premises and, more particularly, the very same victim so that the terror which the use of the knife on a previous occasion had visited upon her was in reality still alive.  The applicants had, he said, “obviously made a decision jointly to return to and rob this same woman and to subject her to fear for a second time.”

10.  Given their pleas of guilty they were entitled to the usual one-third discount which he duly accorded and which reduced the sentence on each count to one of 5 years and 4 months’ imprisonment.

11.  The second applicant had offered to give evidence in the trial of the third accused and the judge thought that this warranted a discount of 6 months’ imprisonment in relation to each count.  He thought that despite the change in the first applicant’s testimony, a disparity of sentence between the two applicants was not justified and he accorded the same six-month discount in relation to each count in respect of the first applicant as well.  In the absence of any other factor, that discount may be thought to have been generous but we note that both applicants had in fact volunteered the name and address of the lookout.

12.  Thus it was that for each offence he imposed a sentence of 4 years 10 months’ imprisonment.  He then ordered 1 year 2 months imposed in relation to the second count to run consecutively to the term imposed on the first count, the remainder to run concurrently; making a total of six years’ imprisonment.  He said that: “… a better way of expressing it is to say that equates to an overall starting point of nine years after trial which is appropriate in these circumstances.”

13.  The complaint is that there was something wrong with the judge’s mathematics.  The matter is put by counsel in the grounds of appeal that: “the result of these mathematical gymnastics was to effectively and unjustifiably deprive each of the applicants of the … six months discount they had been … awarded for assisting the prosecution.”

14.  The complaint arises from the judge’s reference to an overall starting point of 9 years.  The result of 6 years’ imprisonment is said to deprive the applicants of the discounts because six years reflects only one-third discount for the pleas of guilty and not one-third plus the further several months for the offers to testify.

15.  This argument is to ignore entirely everything that precedes the judge’s reference to an overall starting point.  There is, prior to that reference, a careful explanation, step-by-step, of the judge’s approach and how he arrived at a totality of 6 years’ imprisonment.  That stepped approach was entirely correct and it is – or should be – perfectly obvious from a plain reading of the sentencing remarks, that in respect of each offence each applicant has received a six-month discount beyond that in relation to his plea of guilty.  There was no need for the judge to make reference to an overall starting point.  It is, as has often been suggested, an unhelpful concept; and was in this case an aside which has no effect whatsoever on the validity of the stepped approach adopted by the judge and on the result of that stepped approach.

16.  It is then said that the individual starting points of 8 years’ imprisonment were manifestly excessive.  We do not think they were.  It is said in particular that the judge was wrong in failing to draw a distinction in sentence between the two robberies.  Again, we do not agree.  The second robbery is not to be looked at in isolation – it carried with it what must have been a particular terror for this victim, namely, knowledge that the same two men who had assailed her a few nights before and had done so holding a knife to her neck, returned; the circumstances of themselves carrying a clear implication that they might do her physical harm, perhaps in the same way, should she seek to raise an alarm.  In any event, had the judge, as he might have done, imposed a lesser sentence on count 2 no complaint can validly be made of the order that 1 year 2 months of the sentence on count 2 – whatever that sentence – was to run consecutively to the sentence on count 1.

17.  It is contended that the judge erred in equating the invasion of a local petrol station convenience shop with the invasion of private domestic premises.  The judge did not solely rely on this factor in consideration of the final aggravating circumstance, for that consideration encompassed as well the fact that this was a robbery committed by more than one robber.  But in any event a sole female attendant at a petrol station in the middle of the night is in a particularly vulnerable position and the exploitation of that vulnerability by violence requires deterrent measures.

18.  We have been treated to a survey of other cases as an exercise in comparisons; but these have not in the event persuaded us that the judge’s approach or resulting sentence can properly be said to have been manifestly excessive.  Since Mo Kwong Sang, there have been thousands of sentences imposed in robbery cases and there will never be any difficulty in finding a comparator in support of suggested inconsistency of approach or result.  The fact is that the judge’s analysis of this particular case in the light of established guidelines cannot validly be the subject of criticism.  It was a nasty case in which the applicants deliberately chose a shop in what appears from the photographs to be a rather dark and isolated area, and attacked a lone female whom they threatened by holding a knife against her neck and then, to add insult to injury, repeated that offence against the same lady a matter of days thereafter.  There was no rational basis upon which we could properly conclude that the sentences were manifestly excessive or wrong in principle and the applications for leave to appeal were therefore dismissed.