HKSAR v. CHOI KA KIN SERAPHIM

CACC 377/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 377 OF 2012

(ON APPEAL FROM HCCC NO 127 OF 2012)

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REASONS FOR JUDGMENT

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Hon Barnes J (giving judgment of the court):

Introduction

1. The applicant was D1 (of three defendants) in the trial.  He was charged with six Counts of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.  He was charged alone for the 1^st Count but jointly charged with D2 in 6^th Count; and with D3 in 2^nd, 3^rd, 4^th and 5^th Count. 

2. The applicant pleaded guilty to all six counts before Hon M Poon J and was sentenced to a total of six years imprisonment.  The applicant did not file his application for leave to appeal against sentence within the prescribed period and he sought leave to appeal against sentence out of time. 

3. At the conclusion of the hearing, we granted leave to the applicant to appeal against his sentence out of time and treated the leave application as the appeal proper.  We reduced the sentence in respect of all six counts from one of six years to a term of five years and five months imprisonment.  We ordered that all sentences to run concurrently, making a total of five years and five months imprisonment.  We now give our reasons.

Admitted facts

4. The facts admitted show that the applicant committed all six robberies in the early hours at various 7‑Eleven Convenience Stores between August and September 2011. 

5. The facts also disclosed that after the applicant and D2 were arrested by the police for the robbery committed on 30 September 2011 (6^th Count), the applicant not only admitted his involvement in the 6^th Count but he also voluntarily admitted his involvement in the other five robberies (1^st to 5^th Count). It was also through information provided by him that the police located D3.  D3 also pleaded guilty to the four counts of robbery he faced.

1^st Count  

6. This robbery occurred on 14 August 2011 at 3:30 am.  The applicant acted alone.  He pointed a knife at the two shop attendants and declared robbery.  He fled after stealing HK$3,036.

2^nd Count

7. This robbery occurred on 1 September 2011 at 2:28 am.  The applicant and D3 each pointed a knife at the two shop attendants and declared robbery.  They fled with HK$6,800 and six packets of cigarettes.

3^rd Count

8. The robbery took place at about 2:00 am on 7 September 2011.  The applicant and D3 threatened the shop attendant with a knife and fled with HK$3,229.50 and 16 packets of cigarettes.

4^th Count

9. On this occasion the applicant and D3 entered the 7‑Eleven Convenience Store at about 3:00 am on 16 September 2011 and threatened the shop attendant at knife point before fleeing with HK$4,180 and 50 packets of cigarettes.

5^th Count

10. This robbery also took place on 16 September 2011.  At about 4:25 am, the applicant and D3 threatened two shop attendants at knife point and got away with HK$4,851.40.

6^th Count

11. On 30 September 2011, the applicant and D2 went to a 7‑Eleven Convenience Store at 1:45 am to rob.  They both wore face masks, caps and gloves and each pointed a knife at the lady shop attendant before declaring robbery.  After the applicant took HK$1,780 from the cashier he and D2 fled.  A passer‑by noticed the two running away and reported the matter to the police.  Police succeeded in intercepting both culprits inside a taxi in the vicinity. 

Mitigation

12. The trial judge heard that the applicant was a 20‑year‑old man with no previous conviction.  The applicant was a first year student studying interior design at the Hong Kong Design Institute.  The applicant committed these offences due to financial hardship.  Emphasis was placed on the following matters: that the applicant was prepared to make full restitution; that he admitted the other five counts for which he was not arrested; he had provided assistance to the authorities resulting in the arrest of D3; and he had an eating disorder.  The trial judge was specifically urged by defence counsel to give credit to the applicant’s assistance to the police.

Reasons for sentence

13. The trial judge recited the mitigation advanced on behalf of the applicant.  After referring to the case of R v Mo Kwong Sang [1981] HKLR 610, she said in relation to the applicant (at page 11 of the Appeal Bundle):

“Now I turn to D1 who was involved in five robberies jointly with others and one on his own. I consider an overall starting point of 9 years appropriate. He is given the full one-third discount for his guilty plea. He is sentenced to 6 years’ imprisonment on each charge to run concurrently.”

Reasons for delay

14. In his affirmation in support of his application to apply for leave to appeal against sentence out of time, the applicant said he was aware that the time prescribed for lodging an application is 28 days.  However, as his family opposed to the idea of lodging an appeal, he did not instruct a lawyer to lodge an application.  It was only after he succeeded in persuading his family to support his application and to seek legal advice that he finally informed the Correctional Services Department, upon his transfer to an adult prison, that he lodged his application. 

Ground of appeal

15. The applicant, through his counsel Mr Samson Hung (who also represented him in the court below), in effect advanced only one ground of appeal: the sentence was wrong in principle in that the trial judge failed to give any or any sufficient discount for the assistance given by the applicant to the police which led to the arrest and conviction of D3. 

16. Mr Hung relied on the well‑known authority of HKSAR v Z (2007) 10 HKCFAR 183 in support.

Respondent’s response

17. Miss Agnes Chan, Assistant Director of Public Prosecution for the respondent accepts that the applicant was entitled to a 40% discount for pleading guilty and assisting the police by providing useful information.  Miss Chan, however, submits that the trial judge “took a very lenient approach by adopted a global starting point of 9 years’ imprisonment in this case” where Mr Hung himself suggested a global starting point of 12 years.  Submitting that a global starting point of 10 years would have been appropriate here, a 40% discount would result in a sentence of six years.  The respondent submits that the final sentence passed by the trial judge was neither wrong in principle nor was it manifestly excessive.

Our consideration of the submissions

18. It is true that the trial judge did not specifically mentioned in her Reasons for Sentence any further discount she had given the applicant apart from the usual one‑third discount for plea — though the trial judge did reiterate what Mr Hung had said about the applicant’s assistance during mitigation.  It would have been better for the judge to spell out what factors she took into account when she reached her decision in relation to the starting point, and whether any discount has been given to the assistance rendered by the applicant to the police.

19. The applicant committed a total of six robberies within a period of two months.  Apart from acting alone on one occasion, he acted in concert with one other person when he robbed the attendant or attendants of different convenience stores.  On each occasion one or two knives were used to threaten the victim or victims.  Having regard to the sentence guidelines propounded in the case of Mo Kwong Sang, a global sentence of nine years for these six robberies appeared to be lenient.

20. However, one significant factor in this case — apart from the useful information given by the applicant to the police — was that the applicant voluntarily admitted to five other robberies when he was arrested for the last robbery in the indictment (6^th Count). 

21. The applicant showed genuine remorse in his willingness to admit his guilt when he was not charged with the other five robberies.  Under such circumstances, it is in the public interest for the court to give the applicant an additional discount as an encouragement (see Secretary for Justice v Tsui Kim-ming, Simon, CAAR 4/1997; HKSAR v Ng Wing-chung, CACC 176/2005 and HKSAR v Hui Chi-tong, CACC414/2007).

22. Having considered all the circumstance of these offences and the fact that the applicant voluntarily owned up to five of the six robberies he finally faced charges, a global starting point of nine years  was appropriate. 

23. It was accepted that the applicant did provide useful information to the police.  Without his assistance, the police would not have been able to arrest D3 and successfully prosecuted D3.  We agreed that under such circumstances, a total discount of 40% (including the one‑third for a guilty plea) would have been appropriate.

24. A 40% discount from a starting point of nine years would result in five years and five months imprisonment.  We were of the view that in principle the applicant is entitled to a reduction of seven months from his six years term.

25. The application was made out of time.  The respondent did not make any objection to the court exercising its discretion to grant leave to appeal out of time.  Having considered the relevant factors including (a) the length of the delay; (b) the reasons for the delay; and (c) the prospects of the appeal succeeding, we were of the view that this was a proper case for us to exercise our discretion to extend the time for the applicant to make this application (see Archbold Hong Kong 2013, para 7‑105C, and the cases cited therein).

Conclusion

26. We treated the leave application as the appeal proper, allowed the appeal and reduced the sentence in respect of all six counts from one of six years to a term of five years and five months imprisonment.  We also ordered that all sentences to run concurrently, making a total of five years and five months imprisonment.