HKSAR v. GHULAM MUSTAFA

CACC 104 /2025, [2025] HKCA 825

On Appeal From [2025] HKCFI 1976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 104 OF 2025

(ON APPEAL FROM HCCC NO 193 OF 2024)

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J U D G M E N T

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1.  The applicant (who was originally D1 in the court below), together with two co-defendants (originally D2 and D3), pleaded guilty before a magistrate to one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210, as a result of which he was committed to the High Court for sentence. On 9 April 2025, he was sentenced in the High Court by Woodcock J (“the judge”) to 4 years and 5 months’ imprisonment.

2.  By his Form XI Notice filed on 29 April 2025, the applicant seeks leave to appeal against his sentence.  And by his two letters dated respectively 13 May 2025 and 3 August 2025, he has effectively advanced a single ground of appeal.

The facts admitted

3.  At about 11 am on 3 March 2020, five masked and gloved men, including D2 and D3, entered a ground-floor jewellery and goldsmith shop (“the shop”) in Yuen Long, New Territories.  At the time, there were six staff members working in the shop, but no customers.  All five men had alighted from a vehicle driven by the applicant, who promptly drove off to wait for them nearby.  On entering the shop, one of the five robbers pointed a knife at staff members while others smashed the glass display units with an axe and two hammers.  A total of 7 gold rings and 71 gold bracelets valued at HK$605,091 were stolen.  The whole robbery was carried out within two minutes. 

4.  The vehicle used in the robbery was discovered later that day and found to have been stolen a week or so earlier.  After some arrests, one of the robbers, Ghale Raj, was sentenced on 3 November 2022^[1], and two others the following day on 4 November 2022^[2], by another judge, Campbell-Moffat J, in HCCC 216/2021.  In agreeing to the summary of facts, the applicant admitted that he had acted together with the seven other persons set out in the particulars of the charge to rob the shop.

Background of the applicant and mitigation

5.  The applicant was 53 years old at the time of sentencing.  He was single and had come to Hong Kong from Pakistan in 1990.  He had had several appearances and convictions before the courts since 2014 involving offences of possession of dangerous drugs, trafficking in dangerous drugs, theft as well as various driving offences, among them dangerous driving.  He was in part-time employment when arrested.  Counsel on his behalf emphasised that the applicant had only been recruited as the driver in the robbery.  He was not the mastermind and he did not himself enter the shop.  He had been promised a share of the stolen proceeds, but had never received any reward.

6.  The court was invited to have regard to the sentences imposed on the other robbers involved in the same incident.

Reasons for sentence

7.  The judge referred to the guidelines in Mo Kwong-sang v The Queen^[3] concerning sentences for robberies involving weapons.  The judge noted that the robbery was committed by a group of men acting in concert; it was well-planned and obviously premeditated, and the target of the robbery was a goldsmith shop. 

8.  The judge did not distinguish between the roles of the applicant, D2 and D3, considering that they were equally culpable. After taking into account the facts of the case and the aggravating features present, the judge adopted the same starting point of 7 years’ imprisonment which had been adopted for the other co-accused sentenced in the earlier case before Campbell-Moffat J.

9.  Having considered the applicant’s guilty plea at the earliest opportunity and the relevant mitigating factors^[4], the judge gave the applicant a discount of 37%, which included the conventional one-third discount for his timely plea of guilty.  The final sentence on the applicant thus became 4 years and 5 months’ imprisonment

The applicant’s grounds of appeal and submission

10.  In his two letters dated 13 May 2025 and 3 August 2025, the applicant has averred that he was initially arrested for the present case on 9 April 2020.  He was then remanded until 28 September in the same year when the charge against him was dropped.  Subsequently, he was re-arrested in respect of the same case on 27 September 2022.  The applicant argues that the judge did not consider this previous remand period in sentencing and claims he should receive a 6-months’ reduction of sentence.

The respondent’s submission

11.  Ms Lo, for the respondent, submits that having considered the facts of the case, the sentencing guidelines in Mo Kwong-sang, the aggravating factors identified by the judge and the starting point for sentence adopted in the case of the three co-accused in HCCC 216/2021, the starting point of 7 years’ imprisonment was appropriate. 

12.  In respect of the relevant mitigating factors, Ms Lo submits that the sentence discount of 37%, which included the one-third discount for plea was likewise appropriate.  In fact, she suggests it was on the generous side considering the relevant facts of the case.

13.  As for taking into consideration the remand period, the respondent cites Ma Zhu Jiang v Secretary for Justice^[5] and HKSAR v Asjad Baig^[6], both first instance decisions, for the proposition that section 67A(1) of the Criminal Procedure Ordinance, Cap 221 does not require a consideration by the court of any remand period prior to sentencing, because that is a post-sentencing administrative exercise to be carried out by the Correctional Services Department (“CSD”). 

14.  Ms Lo further informs the Court that according to CSD, from whom instructions have been sought, the period of remand before the applicant’s re-arrest has already been taken into account and used to discount the sentence served in another case (FL/4294/2018^[7]), which concerned one charge of trafficking in a dangerous drug and one charge of failing to surrender to custody.  This would make sense because by the time the applicant was released from his sentence of 23 months and 2 weeks for the two offences in FL/4294/2018, CSD would not have known he was going to be re-arrested in respect of the present case.  Since he had served nearly 6 months in custody on remand before the robbery charge was initially dropped, it was a matter of fairness that the previous remand period should be taken into account by CSD in computing the sentence to be served in FL/4294/2018.

15.  Ms Lo submits that the sentence imposed by the judge was, therefore, appropriate and correct and the present application for leave to appeal against sentence should be refused.

Consideration

16.  The starting point for sentence of 7 years’ imprisonment for armed robbery is unimpeachable.  As for the 37% discount applied to the starting point, having noted the circumstances of the larger than usual discount, I can see no reasonable argument that it was inadequate in the circumstances.

17.  In respect of any reduction for a period spent on remand and whether it has been, or should be, taken into account in the computation of the sentence to be served, that issue must be a matter for CSD in determining the applicant’s date of release.  It is not a factor which determines the appropriate length of sentence or the extent of discount by the court.  Nor is it a matter which normally engages the Court of Appeal.  If an applicant is aggrieved by an administrative decision of CSD, he has other avenues open to him to pursue his complaint.

18.  There is no reasonable argument on appeal and the application is refused.  I should remind the applicant that he has the right to renew his application for leave to appeal against sentence to the Court of Appeal, but I must also warn him that the Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for renewing the application.

[1]  HKSAR v Ghale Raj (Unrep., HCCC 216/2021, 3 November 2022).

[2]  HKSAR v Gurung Sanjan and another (Unrep., HCCC 216/2021, 4 November 2022).

[3]  Mo Kwong-sang v The Queen [1981] HKLR 610

[4]  I.e. the matters disclosed in the annexed confidential submission dated 14 July 2025.

[5]  Ma Zhu Jiang v Secretary for Justice [2008] 6 HKC 464.

[6]  HKSAR v Asjad Baig [2023] 1 HKC 32.

[7]  AB, p 22, Item 5 of the applicant’s Criminal Record Summary. Date of sentence: 7 September 2020.