HKSAR v. TSANG MAN WAI, RAYMOND

CACC 124/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 124 OF 2008

(ON APPEAL FROM DCCC NO. 121?OF 2008)

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

1.  On 11 March 2008, in the District Court, the applicant was convicted on his own plea of one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.  He was sentenced by Judge Remedios to five years’ imprisonment.  The applicant now seeks leave to appeal against the sentence.

2.  The robbery to which the applicant pleaded guilty was, by any reckoning, a most serious one.  The applicant and an accomplice approached an estate agent, a woman, professing interest in renting an apartment.  They arranged to meet her at that apartment.  She came to the apartment on her own and once there was robbed by the applicant and his accomplice.  In the course of the robbery, they assaulted her, causing, among other injuries, a four centimetre haematoma to her scalp, a bleeding nose and bruising around her eyes.  They then bound her hands before stealing a watch, a ring and, other personal items.  While the applicant, now in possession of her keys, went to the woman’s business premises to see what could be stolen there, his accomplice held the victim at knifepoint in the apartment.

3.  As the sentencing judge correctly observed, this type of robbery exploits the vulnerability of agents who, as part of their day to day business, must take clients to view premises for lease or sale.  More often than not the agents go to the premises alone and those premises often are vacant.

4.  In assessing sentence, the judge took as her starting point a sentence of seven and a half years.  That starting point cannot be faulted.  Indeed we may well have taken a higher starting point.

5.  The single ground of appeal advanced by the applicant is, however, a jurisdictional one.  It is the applicant’s contention that, in adopting a starting point of seven and a half years, the judge acted outside of her powers as, pursuant to section 82(2) of the District Court Ordinance, Cap 336, a judge of the District Court may only impose a maximum sentence of seven years.  Section 82(2) provides that a judge in a District Court criminal trial may –

“… impose any penalty and make any order provided by law for or in connection with any offence of which it has cognizance:

Provided that –

(a) no sentence of imprisonment passed by the Court shall exceed 7 years in respect of one offence and where 2 or more consecutive terms of imprisonment are imposed by the Court … the aggregate of the said terms of imprisonment shall not exceed 7 years;”

6.  Whether, in assessing sentence, a judge may adopt a starting point in excess of the seven years’ jurisdictional limit has been the subject of previous jurisprudence, the principles being drawn together in HKSAR v Li Yan [1998] 4 HKC 12, at 14.  The principles include the following two which provide a complete answer to the applicant’s contention:

“(3)  In order to assess the correct sentence, it is permissible for the judge to adopt as a starting point a total sentence of more than seven years if the offence or offences warrant such a sentence, but he may not impose a sentence of more than seven years.

(4)    If the sentences are imposed after plea, the starting point may be more than seven years … .”

7.  Put simply, on a true construction of section 82(2) of the District Court Ordinance, a judge, in assessing sentence, has the power to adopt a starting point in excess of seven years provided the actual sentence imposed does not exceed that seven-year limit.  In the applicant’s case, of course, the sentence imposed was one of five years, well under the limit.

   We have also taken into account what was said by Mortimer VP in Li Yan, page 15; namely that –

“In cases where the appropriate sentence to be imposed after discount is seven years or more, a meaningful discount from seven years should be given in order to give some benefit for the plea. The same applies if the appropriate sentence is so near seven years that the discount is not meaningful. As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than one year be so considered.”

   In the circumstances of this case, the sentence of five years did represent a meaningful discount from the jurisdictional limit and no complaint can be made in that regard.

8.  There is no merit in this application.  It is fundamentally misconceived and is dismissed. 

9.  The matter, however, does not end there.  We note that on 21 August 2008 the applicant sought leave to appeal before a single judge of this court, Stuart-Moore VP.  On that occasion, in dismissing the application, the judge informed the applicant in the clearest of terms that his application was misconceived and warned him that should he persist in his application before this court he ran a risk that part of the time he had already spent in custody would not be reckoned as part of his sentence.  On that occasion, the applicant acknowledged that he understood.  He has nevertheless, in the face of that very clear warning, persisted in his appeal on the same misconceived ground, adding nothing of any substance to that ground.

10.  The applicant had been unable to advance any reason for his persistence other than a submission that he had not earlier (before Stuart-Moore VP) understood the nature of the proceedings.  We have heard an audio recording of what was said and do not accept that submission.  As we have said, matters were explained in the very clearest of terms to the applicant and he indicated on several occasions that he understood.

11.  Accordingly, pursuant to the provisions of section 83W(1) of the Criminal Procedure Ordinance, Cap. 221, we order that a period of two months of the time the applicant has spent in custody should not be reckoned as part of the sentence presently being served by him.