HKSAR v. LEE KIN WAI

CACC 315/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 2001

(ON APPEAL FROM HCCC 3 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 3 August 2001, following a trial in the Court of First instance before Mr Recorder Lunn, SC, and a jury, the Applicant, aged seventeen, was convicted of robbery. He was sentenced to eight years' imprisonment and now seeks leave to appeal against conviction and sentence.

Prosecution's case

2. The prosecution's case against the Applicant relied heavily on the Applicant's alleged confession coupled with the finding of his palm-prints on the glass top of a cabinet at the scene of the robbery which was inside Room 1612, On Hoi House at the Cheung On Estate in Tsing Yi. It was alleged that the Applicant had been disturbed by Kong Wai (the victim) whilst in the course of burgling these premises. The victim was a seventy-nine-year-old occupant of the flat who lived there with other members of her family. On her return home, at about 10.15 a.m. on 14 September 2000, she found the inside security chain had been secured when she opened her front door. With the help of a neighbour, this was eventually cut to enable the door to be fully opened.

3. While the victim was calling out to find out who was inside her flat, the victim was suddenly grabbed around the neck from behind in what must have been extremely frightening circumstances for her. She asked the intruder who he was and she was told to shut up. When she tried to look at her attacker, she was struck with a trophy stand on her left eye. Again, she was told to shut up or, the intruder added, she would be beaten to death.

4. The victim was then forced into her granddaughter's room where she was pressed against the lower bunk. It was while the victim was in that position that she was struck several more blows to the left and right sides of her head, above and behind the ears, and also to the back of the top of her head. Her right ear was cut and at one stage she lost consciousness. When she later regained consciousness, the victim was able to crawl out into the corridor where she was given assistance once again by a neighbour.

5. In due course, an ambulance took the victim to hospital. She remained there for treatment for nine days. The photographs and the medical reports relating to the victim's injuries provide a fuller picture of the violence inflicted on this unfortunate victim. Amongst other things, Dr Wong found seven wounds, a subconjunctival haemorrhage and a scalp haematoma in the occipital region. X-rays did not reveal any fractures and the victim's wounds were sutured. During the time the victim remained in the hospital ward for observation, she was seen to be "confused" and a CT scan of the brain was carried out. This revealed a "traumatic subarachnoid haemorrhage and a fracture(d) right parietal bone". Whilst the victim was reported as making a "good recovery", nine months later, when she attended court to give evidence at trial, she was still suffering from the effects of the blows. She was unable to walk properly and needed a stick and she continued to have problems with the vision in her left eye.

6. Plainly, as the recorder stated in the course of his summing up to the jury, the victim had been subjected to a "frenzied and no doubt terrifying attack on her". However, she had not been able to identify her attacker and the evidence which the prosecution relied upon to establish the Applicant's guilt came from a number of sources.

7. Firstly, the prosecution relied on the Applicant's alleged confession in the video-recorded interview on 22 September 2000. This followed his re-arrest, by which time the police were aware the Applicant had left his palm-prints at the scene of the crime. The Applicant confessed to having stolen the keys belonging to the victim's flat from one of the younger members of her family who also lived at that address. This was the granddaughter of the victim who was known to the Applicant.

8. In a most unhelpful amended skeleton argument which had been provided to the court by Mr W.S. Cheung, for the Respondent, we were simply referred to an interview of forty pages which he made virtually no attempt to summarise. From a perusal of this long interview, it seems that the Applicant made a clean breast of his offence. In particular, so far as proof of the offence of robbery is concerned, he allegedly admitted that having "violently" struck the victim with the trophy, he took several hundred dollars, a purse and a gold chain from her.

9. In addition to the evidence of a confession, the victim's granddaughter, from whom the Applicant said he had taken the keys to the flat, gave evidence that he was a boyfriend of hers and that she had once spent a night at his flat. This evidence provided the Applicant with the opportunity to have stolen the keys while she was asleep to which he had allegedly confessed to the police.

10. A third category of evidence called by the prosecution related to the Applicant's palm-prints which were found in the victim's flat. It was alleged by all six members of the victim's family, including the victim herself, that the Applicant had never been invited into or seen in their premises before.

11. The fourth and final category of evidence was summed up to the jury in these terms:

".... the steps that the defendant took to change his appearance; haircut and dyeing of hair, buying new clothing and throwing old clothing away, all done soon after the offence had been committed. Then finally, the day and night long spending spree that the defendant embarked upon, which he has told you about in his evidence. He left home about noon, did not get back until 8 o'clock the following morning." (Appeal bundle p. 19)

Defence case

12. The Applicant gave evidence at his trial and he additionally called his brother and sister to testify on his behalf.

13. Again, in a most unhelpful way, Mr Cheung referred us in his written submissions to the 25 pages in the summing up which set out what the defence case was, with little attempt to summarise its effect. Again, we have had to go through those pages in some detail in order to make up that deficiency. We can express the hope that this kind of presentation will not happen again.

14. Suffice it to say, the Applicant said that his palm-prints could have got onto furniture in the flat because he had gone inside at his girlfriend's invitation on a previous occasion. He gave innocent explanations for his change of clothing, his haircut and change of hair colour on the day of the robbery which were coupled with his spending spree on that day. He relied to some extent on an exculpatory statement he had made to the police following his initial arrest on 16 September 2000 when police were not aware of the Applicant's palm-prints in the flat.

15. So far as his later confessions were concerned, he alleged that the police had assaulted him and then coached him as to the answers he should give in his video-recorded interview following his re-arrest on 22 September 2000.

The application

16. The Applicant provided no reasons for advancing his application and, in court today, he said that he had had nothing to do with the offence. He merely stated that he had been assaulted by the police to make him admit the robbery.

17. These, of course, were matters which were fully ventilated in the court below and they add nothing to the material which was placed before the trial court. The recorder provided the jury with a summing up of the greatest clarity and it was set out in terms of consummate fairness. The case was extremely strong against the Applicant and no valid criticism can be made of the conviction.

18. The application is accordingly dismissed insofar as this aspect is concerned.

Sentence

19. This was a dreadful crime committed by the Applicant at a time when he was going out with the victim's granddaughter. He abused her trust and his vicious attack on the seventy-nine-year-old victim marked the Applicant out as someone who required condign punishment.

20. In passing sentence, the recorder summarised the salient parts of the prosecution case. He went on to remark:

"In an apparent attempt to remove the danger of fingerprints being left behind, you took an assortment of relatively valueless items, including the damaged sporting trophy cup and its marble base which you had used to bludgeon Madam Kong into unconsciousness, and dumped them into a storage area on the 13th floor of the block as you fled, leaving Madam Kong unconscious on the floor of her own home, in a pool of her own blood.

Your behaviour the rest of that day is revealing of the depths of your depravity. Having sought to change your appearance by having your golden brown hair cut and dyed blue, having bought new clothes and thrown away the ones you were wearing, you spent the proceeds of this robbery indulging yourself in video games, disco and restaurants. You did not return home until the next morning. You were oblivious and utterly indifferent to what you did to Madam Kong.

Clearly, you gained entry to the premises by using the keys you took from the side of Chan Kit-ying, Madam Kong's granddaughter, as she slept in your bed at your home that morning. That in itself was an extraordinary betrayal of the girl you said in evidence that you loved." (Appeal bundle p. 179)

21. The recorder later observed that the Applicant was a person who had been convicted once before of robbery, when he had been placed on probation at the age of fourteen. He pointed out also that the Applicant had deliberately struck blows to the victim's head, and he went on to say:

"The judgment of the Court of Appeal, in The Secretary for Justice v Ma Ping Wah, [2000], 2 HKC 566, makes it clear that of the aggravating factors to be taken into account in applying the guidelines of Mo Kwong Sang, the striking of blows to the head with a weapon is a factor of which account must be taken in determining the appropriate sentence. In the course of the judgment of the Court of Appeal, Stuart-Moore VP said this, at 574A:

'It seems to us a matter of the most straightforward commonsense that where a robber deliberately sets about his victim by striking a blow or, as in this case, blows to the victim's head with a weapon, which is capable of causing brain injury, this will be an aggravating factor. It is a particularly dangerous act.....

In our judgment, the usual sentence to be imposed for such robberies, following a contested trial, where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or the culprit with intent on robbery, should not be less than 8 years' imprisonment.'

The recorder later went on to say, when imposing a sentence of eight years' imprisonment:

I am mindful of your age, but I must have regard to the vicious assault that you delivered to this old lady and the disregard you had for her welfare or safety, when you simply fled the scene, leaving her unconscious......." (Appeal bundle pp. 180-181)

22. This was not, of course, a 'head-bashing' robbery in the sense that is often referred to, where a street robber tries to disable the victim by striking at the victim's head before the robbery is carried out. Nevertheless, the same aggravating features apply to a case such as this. We can see nothing wrong in principle with the recorder's approach, particularly bearing in mind that the Applicant was well aware that the victim was elderly and likely to be frail.

23. The sentence of eight years was wholly appropriate even on an offender of this Applicant's age.

24. Accordingly, as there is no merit whatever in the application relating to sentence, it is dismissed.

25. We shall order, in view of the complete lack of merit to any part of this application, that three months of the time the Applicant has spent in custody shall not count towards the sentence he is serving.