HKSAR v. SUEN PAN HOI

CACC 231/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 231 OF 1999

(ON APPEAL FROM HCCC 21 OF 1999)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant Suen Pan-hoi pleaded guilty to one count of robbery before V. Bokhary, J. in the Court of First Instance on 22nd April 1999. He was sentenced to 5 years imprisonment consecutive to a sentence 15 months which the applicant was then serving for an immigration offence.

2. The facts of this case which the applicant admitted when he pleaded guilty are somewhat unusual.

3. At around 4:30 a.m. on 13th October 1998, the applicant, an illegal immigrant, broke into the domestic premises at Flat B, 8/F., No. 66, Bulkeley Street, Hung Hom. The noise he made in searching for properties in the premises woke up PW1 who was then sleeping. The applicant then pointed a gun-like-object at PW1 and ordered him not to move and to take out his money. When PW1 was looking for money to hand over to him, the applicant tucked the object in his waist. PW1 then noticed that the gun-like-object was in fact his own imitation gun which he had left in the sitting room. As PW1 did not find money, he woke up his wife and both of them managed to find $110 and gave the money to the applicant. When the applicant was counting the money, PW1 and his wife put up a struggle with the applicant and eventually with the assistance of the watchman subdued the applicant.

4. The Judge accepted that the applicant did not enter the premises intending to rob but after he entered, he found the imitation gun and used it to threaten the occupants and committed the robbery. The aggravation was that he used an imitation gun and he entered domestic premises at night when he committed the robbery. The Judge adopted a starting point of 8 years for the robbery offence, discounting 3 years for his plea and for the fact that he was then serving a 15 months sentence for his immigration offence, she made further discount and reached the 5 years consecutive sentence she eventually imposed.

5. There are a number of grounds of appeal but essentially what Mr. Tolliday-Wright for the applicant complains is that the starting point adopted by the Judge was too high and the Judge gave too little reduction on totality.

6. Mr. Tolliday-Wright submits that the case was more like a domestic burglary. However, he now appears to concede that this argument is not very attractive. He appreciates that the robbery was with an imitation firearm and is to be treated severely but he submits that 8 years starting point in the present case is manifestly excessive. He refers to HKSAR v. Leung Chim-fung [1998] 2 HKC 111 where a sentence of 6 years for a robbery in which an imitation firearm was used was held to be in accordance with the guidance in R. v. Mo Kwong-sang [1981] HKLR 610.

7. Mr. Wong, for the government has referred to us the case of R. v. Yu Tai-wing [1995] 1 HKC 837, where the court indicated a starting point of 10 years for a robbery by a sole robber in a public place using imitation firearm was appropriate sentence after trial. Be that as it may that case has no application here. There, the robbery was committed in totally different circumstances from the present case. It involved a police officer who used the imitation firearm to rob a lady in a public place. In the present case the applicant did not take the imitation gun with him into the premises to go about committing the robbery. He found the gun by chance after he broke in and he took the opportunity of using it to threaten the occupants and thereby committed the robbery.

8. In the circumstances, the starting point of 8 years is manifestly excessive. We consider a 6 years starting point would have been appropriate. We appreciate that this is a case of an illegal immigrant entering domestic premises at night searching for properties and the occupants were threatened with the imitation firearm which we have had the opportunity of looking at. It looks formidably and closely likes a real weapon. The occupant at the time was in no position to tell whether or not it was genuine. The occupants were threatened and robbed. Nevertheless, this was really a robbery started off as a domestic burglary and 6 years would be the appropriate starting point in all the circumstances. Giving the applicant the reduction of 1/3 for his plea, the sentence for the robbery charge should be one of 4 years. Taking into consideration the 15 months sentence the applicant is serving for his immigration offence, a total sentence of 5 years and 3 months would not be excessive in any event. We therefore accept the application for leave to appeal against sentence and treat the application as the appeal itself. We allow the appeal and we reduce the sentence of 5 years to one of 4 years consecutive to the sentence the Applicant is now serving.