HKSAR v. THAPA KRISHNA KUMAR

CACC 128/2023, [2023] HKCA 1332

On appeal from: [2023] HKCFI 1771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 128 OF 2023

(ON APPEAL FROM HCCC NO 81 OF 2023)

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REASONS FOR JUDGMENT

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1.  The applicant pleaded guilty to one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance (Cap 210) and was committed to the Court of First Instance for sentence. On 30 July 2021, the applicant was sentenced to 5 years and 2 months’ imprisonment by A Lai J (“the judge”).

2.  The applicant applied for leave to appeal against his sentence.

3.  After the hearing, I refused leave and these are the reasons.

The summary of facts

4.  At about 2:55 a.m. on 15 December 2021, the applicant and another male entered a 7-Eleven Convenience Store in Tsim Sha Tsui (“the Store”) together, took a bottle of drink and placed it on the cashier counter. Ms. Tai (“PW1”), who was working alone there was threatened with a folding knife taken out from the pocket of the applicant and a cutter held by the other male, and was demanded to open the cash register. The applicant then reached across the counter and tried to grab the cash register tray when the unknown male holding the cutter acted as a lookout inside the Store.

5.  The applicant managed to pull out the cash register tray and whilst he was in the course of taking cash from it, PW1 tried to pull the tray away. The unknown male slashed PW1’s right forearm with his cutter. The applicant eventually took away HK$840 cash. He and his accomplice fled towards Nathan Road.

6.  PW1 sustained a cut wound in her right forearm and attended the Accident & Emergency Department of Queen Elizabeth Hospital, but she left before receiving any treatment.

7.  With the assistance of CCTV installed in the Store and in the vicinity, the applicant was located and arrested on 16 December 2021. In a video-recorded interview, the applicant admitted under caution that he and his friend Mousham went to the Store to commit robbery. Both of them were armed with a knife and he took about $1,000 cash from the cashier. It was Mousham’s idea to rob a convenience store and chose the Store at random. Mousham gave him the folding knife a few hours before the offence. They shared the money afterwards and spent it on drugs. Details of Mousham was provided in the interview as aged 30 to 35, the applicant was acquainted with Mousham about 2 to 3 months prior. Mousham’s contact was unknown to him.

Grounds of appeal

8.  The applicant acted in person and advanced two grounds of appeal:

(1)  Despite the assistance rendered by him was considered not to be of value, he should still be given a further 5% discount. He relied on the case of HKSAR v Lo Chi-wai and Another[1] where a further 5% discount was given as a recognition of remorse;

(2)  His last conviction, according to his criminal record, was in July 2010[2]. The judge’s mistaken remark that he committed the offence about a year after his discharge from prison[3] was wrong and must have contributed to a lack of “proper discount” afforded to him.

Discussion

9.  The judge referred to Mo Kwong Sang v R[4], which suggested a starting point of 5 years for an armed robbery where a knife or a dangerous weapon was displayed to the victim and a starting point of 7 years where actual violence was inflicted on the victim. The present offence was committed by two robbers each armed with a weapon and displayed to threaten PW1. The judge considered a starting point of 7 years appropriate and enhanced that by one year for the aggravating factor of robbing a convenience store: HKSAR v Wong Cheung[5], HKSAR v Ng Ping Tak[6]. Having arrived at the notional starting point of 8 years, the judge did not accept that the small sum of cash stolen amounted to an effective mitigation because it was all the cash register held at the time. The applicant was given the customary one-third discount for his timely plea.

10.  The applicant complained that the extra 2% given was not sufficient to reflect his assistance to the police. It falls upon this court to examine the judge’s reasons in this respect. A non-prejudicial statement was given by the applicant some one year and five months after the offence was committed[7]. Most of the information was already provided in his video-recorded interview and which counsel for the applicant accepted to be not useful[8]. What was further provided in the NPS was identifying the district in which Mousham frequented and expressing his willingness to become a prosecution witness upon Mousham’s arrest[9].

11.  Whilst it was urged that the facts and assistance rendered in Lo Chi-wai was similar to the present case but nonetheless the trial judge there had afforded an extra 5% discount to the defendant, Lo Chi-wai being a Court of First Instance sentencing exercise is not a binding authority. The Court of Appeal in HKSAR v Lo Sze Tung Stephanie held that assistance rendered by each accused falls to be assessed by the sentencing judge and there is no single uniform discount[10].

12.  The judge found that the information provided was “so vague … almost useless to the authorities”[11]. Nevertheless, in order to encourage arrested persons to provide assistance to the authorities, and taking into account all matters urged upon her, the judge gave a further discount of 2% to the applicant, resulting in an overall discount of 35.33%, sentencing the applicant to 5 years and 2 months’ imprisonment. It is a discretion entirely within the judge’s own arena and was a generous extra discount.

13.  The last conviction of the applicant was dated 27 July 2010 for 6 months and the present offence was committed on 15 December 2021. Whilst the judge did mistakenly state that the present offence was committed about one year after the applicant was discharged from prison[12], nowhere in the reasons for sentence did she treat this as an aggravating factor. What she said was this:

“I have taken into account all the matters urged upon me in mitigation by counsel, the circumstances of this case, the personal circumstances of the accused including the illness of his wife, the fact that the offence was committed about 1 year after he was discharged from prison, and all other matters including the injury sustained by the victim. I consider that there is no other mitigating feature that would entitle the accused to any further discount. So the total discount of sentence is that of 35.33 per cent.”[13]

14.  It is clear that the stating of the fact that the offence was committed about one year after his last discharge from prison was in the midst of the judge’s consideration was to illustrate that she had taken all the mitigating and aggravating circumstances into account.

15.  At the hearing the applicant urged for a further discount for his wife’s illness. He said that he wishes to be released sooner to take care of her. The respondent correctly pointed out that the applicant’s family circumstances do not constitute mitigation especially when the offence is serious: HKSAR v Shum Chung-wai [14]. In any event the ill-health of his wife did not happen after he was incarcerated. He knew full well of her circumstances when he committed the present offence.

16.  Both grounds are not reasonably arguable and leave is refused. The applicant was reminded of his right to renew his application for leave to the Court of Appeal but such may attract a consequence of a direction for loss of time spent in custody pending his appeal, should the Court come to the view that there is no justification for the renewal of his application.