HKSAR v. YEUNG CHUEN TAI

[English Translation – 英譯本]
CACC 272/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 272 OF 2009

(ON APPEAL FROM DCCC NO. 341 OF 2009)

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JUDGMENT

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Hon Yeung JA (giving the Judgment of the Court):

Background

1. The applicant, Yeung Chuen Tai, pleaded guilty to a charge of theft before District Judge Andrew Chan and as a result, was sentenced to 32 months’ imprisonment. The Judge adopted a starting point of 4 years and on account of the applicant’s plea, discounted it by one-third to 32 months.

2. The applicant now seeks leave to appeal against the sentence.

Facts

3. The victim of the case, Madam Wu, who was 78 years old, lived alone and relied on her son for support. Madam Wu had operated a guesthouse called “Fu Yiu Villa” (富瑤小築) in Phoenix Apartments in Causeway Bay before. The applicant came to know her as he had been a resident in the guesthouse, and was employed by her as a relief worker.

4. “Fu Yiu Villa” ceased business in 2006 but Madam Wu continued to employ the applicant to decorate her residence.

5. Starting from September 2008, the applicant frequently asked Madam Wu to lend him money. On each occasion, the loan was not more than $100. On 3 October 2008, the applicant again went to Madam Wu’s residence to demand money. When she refused to open the door, the applicant caused a disturbance outside the door and made nuisance by inserting a two-foot long aluminium strip through the ventilation window in the living room. Being at her wit’s end, Madam Wu had no choice but to open the wooden door of her residence. The applicant rushed into the premises immediately, grabbed hold of Madam Wu’s upper body with both hands and dragged her into the bedroom. Madam Wu shouted aloud, “Help!” She asked the applicant what he wanted. The applicant responded, “I want money, and life as well!” Extremely frightened, Madam Wu handed over $8,000 to the applicant. The applicant took off immediately after taking the money.

6. The applicant had a clear record. He claimed that he suffered from the disease of corneal detachment and he had lost all the money that he had taken in mahjong games.

Reasons for sentence

7. Judge Chan took the view that although the offence to which the applicant pleaded guilty was theft, the facts which he admitted indicated that the elements of the offence of robbery were all there. As a result, he decided to sentence the applicant on the basis of an offence of robbery.

8. Judge Chan emphasized that Madam Wu was of advanced age and her financial position was not strong. Yet, the applicant applied force on her and stole from her $8,000, an amount of money which was not insignificant to her. The judge was of the view that the crime that the applicant committed must have caused great fear to Madam Wu. He took a starting point of 4 years, and because of the guilty plea of the applicant, he discounted it by one-third to 32 months.

Ground of appeal

9. Mr. Lo, Counsel for the applicant, stressed that Judge Chan should not have sentenced the applicant for an offence of which he had not been convicted, namely, the offence of robbery, and the starting point adopted by the judge was also manifestly excessive. Mr. Lo cited the cases of HKSAR v Tsang Wai Man (CACC 288/2006) and R v Yung Wing Hong (HCMA 386/1996) in support of his position.

Discussion

10. The applicant gained entry into Madam Wu’s residence by rough means with a view to taking money from her. It was sheer luck that Madam Wu did not sustain any sprains, falling down or injury which might result from her bumping against the furniture when she was dragged into the bedroom by the applicant. The home is supposed to be the safest place. Yet Madam Wu had to withstand disturbances made by the applicant for a long period of time. The applicant should be strongly condemned for the crime that he committed. When considering the sentence to be imposed, the court should take into account all the facts of the case, including any aggravating factors.

11. However, the court cannot sentence a defendant for a crime that he/she has not been charged with or convicted of. It is not for this court to be concerned with the question of why the prosecution did not charge the applicant with the offence of robbery. But it is undisputed that what the applicant faced with and convicted of was just an offence of theft. The applicant must be sentenced for the offence of theft. It is contrary to sentencing principle and inappropriate for Judge Chan to sentence the applicant for an offence of robbery. We cannot lose sight of the fact that the maximum sentence for an offence of theft is 10 years’ imprisonment while that for robbery is life.

12. The use of force on Madam Wu by the applicant in the course of the theft is certainly an aggravating factor. But the basis for the sentence must still be the offence of which the applicant was convicted and not any other offence.

13. Although the applicant did use force on Madam Wu, his purpose was to restrain her and to drag her into the room. The force that he used was not very serious and did not result in any injury to her.

14. For an ordinary theft of $8,000, the sentence should not be beyond 18 months. Even taking into account the fact that the applicant threatened and bullied an old lady of 78 years by means of force, in our view, a starting point of sentence of 33 months is sufficient to reflect the seriousness of the incident. In taking this starting point, we have also taken into account the clear record of the applicant.

15. On the facts of the case as a whole, we are of the view that the starting point of 4 years adopted by the judge on the basis of an offence of robbery is wrong in principle and excessive. In considering the sentence for an offence of theft and for the applicant having a clear record, the appropriate starting point is 33 months. He is entitled to one-third discount on account of his plea.

16. We grant leave to the applicant to appeal against sentence and treat the application as the hearing of the appeal. We allow the applicant’s appeal and the sentence is reduced from 32 months to 22 months.