HKSAR v. MUHAMMAD AKRAM

CACC 374/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2012

(ON APPEAL FROM DCCC 423/2012)

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JUDGMENT

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 10 September 2012, the applicant was convicted after trial before Deputy District Judge C P Pang upon a charge that on 7 March 2012 at a public toilet in Hung Hom, he robbed a male of HK$250, Thai Baht 100 and a mobile telephone.  He was sentenced to a term of five years three months imprisonment.  He sought leave to appeal both conviction and sentence.

2.  On 11 April 2014, we dismissed his application in relation to conviction and now give our reasons for that decision.

3.  We reserved our decision in relation to sentence, because a judgment in Chinese was cited to us and before deciding the matter of sentence we wanted to have a translation of that judgment.  We now deliver our reserved decision.

The prosecution evidence

4.  The evidence against the applicant at trial was in the main  that of the complainant, a 31-year-old male who had at about midnight on the day in question just finished a meal with friends and went to a public toilet, where he occupied one of the cubicles. Upon emerging from the cubicle he was, according to his testimony, approached by the applicant,   who was flourishing a glass bottle and who said: “Give me 100”.  The complainant said: “Hold on.  What you want?” Thereupon, the applicant waved the glass bottle about and hit the complainant on his left middle finger and insisted on money.  The complainant took out $100 and gave it to the applicant who then asked for all the money the complainant had whereupon further notes were handed over.  The applicant then told the complainant to go back inside the cubicle.  The complainant did so and locked himself in.  He took out his mobile telephone intending to call the police but before he could do so, the applicant climbed up the wooden partition of the cubicle and demanded that the complainant hand over his mobile telephone, which he did.  The applicant went away.

5.  Once the complainant heard no sound he emerged from the cubicle but saw the applicant at the doorway of the toilet block and, fortunately, there were two uniformed police officers there to whom the complainant shouted “Robbery”, whereupon the police officers who had just seen the applicant throw away a glass bottle, arrested the applicant and on him they found the complainant's mobile telephone and cash.

The defence case

6.  In his subsequent video-recorded interview, the applicant denied committing a robbery or ever holding a glass bottle.  His version was that the complainant had taken hold of the applicant's penis whilst the latter was urinating; he had done nothing to invite this indecent assault and had kicked the complainant in response.  When he was about to leave the toilet block, he was unjustly arrested.  The money found upon him was his own, he said, and he denied that a mobile telephone had been found on his person.  The applicant testified at trial and gave the same story.

The judge’s reasons

7.  In assessing the testimony, the judge was of the opinion that the applicant changed his evidence as he went along and the judge considered the alleged circumstances and standing positions in which the supposed indecent assault took place to be highly improbable.  It was also highly improbable, he thought, that if the applicant had indeed been assaulted in this way, that, rather than leave the toilet block immediately, he would have directed his assailant to go into one of the cubicles; and that it was further improbable that the assailant, instead of running away, would obey that instruction; and still further improbable that the applicant would stay in the toilet block to wash his hands for several minutes.

8.  The judge’s analysis of the testimony seemed to us to be unimpeachable.

Argument

9.  In his home-made grounds of appeal, the applicant said that “the conviction did not convince ... me”: and in a letter to the court supplementing this complaint, he sought to reopen the issue of an alleged assault against him by the police by saying that there is x-ray evidence to support his claim.  He supplemented his written submissions by oral submissions, pointing out that no fingerprints of his were found on the glass bottle and that had there indeed been a robbery as alleged, the complainant could easily have escaped.  He also rehearsed before us allegations against the police which he had advanced in the court below.

10.  The essence of the applicant's submissions upon his application for leave, was an attempt to re-litigate the facts; but we found no proper basis upon which to conclude that the judge had erred in his reasoning or in his conclusion and, accordingly, the application for leave to appeal against conviction was dismissed.

Sentence

(1) The judge’s approach

11.  As to sentence, the judge noted the fact that the applicant was, at the date of sentence, aged 26 years and had come to Hong Kong in December 2008.  He is an asylum seeker.  The judge noted as well that on 16 March 2011, the applicant was made the subject of a bind-over order for one year in the sum of $1,000 in respect of an alleged assault occasioning actual bodily harm.  Clearly, the present offence was in breach of that direction to keep the peace.  The judge took the view that it was unnecessary to make an order in respect of the breach.

12.  The judge noted that in Mo Kwong Sang [1981] HKLR 610 the Court said that the appropriate sentence after trial in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years imprisonment and that in HKSAR v Au Chi Hang [2006] 2 HKLRD 310 (the judgment which we caused to be translated) the Court remarked that weapons might fall into two categories, dangerous and non-dangerous and it was the dangerous type to which the five-year guideline approach.  He took the view that the glass bottle used by the applicant was properly to be categorised as a non-dangerous weapon and he noted that in this case the injury to the complainant transpired to be minor. 

13.  There were aggravating features, he concluded: the time (midnight) at which the offence was committed and the fact that it was committed in a public toilet, an area from which a victim might find it difficult to escape.  In these circumstances, he said, the appropriate “initial starting point” should be 5 years imprisonment.  We would comment in passing that a point which is arrived at after taking into account aggravating features is not an initial starting point; a starting point is the point taken before aggravating and mitigating factors.

14.  The next matter which he treated as an aggravating feature was the making of a false allegation to the police that the complainant had indecently assaulted him, the applicant.  The judge used this fact to enhance the sentence by three months and this resulted in the sentence which he imposed, namely, one of five years three months imprisonment.

(2) Analysis

15.  The first ground of appeal is that the starting point of five years imprisonment was “too high, given the very minor injury and the fact that the judge found the bottle to be ‘non-dangerous’ ”.

16.  The answer to this complaint is that the judge was in error when he categorised the bottle as non-dangerous.  Au Chi Hang is to the effect that for the purposes of the Mo Kwong Sang guidelines, “dangerous weapons” are weapons which can be compared to a knife in terms of their capability of inflicting death or serious injuries in the course of a robbery so that, faced with such an object, the victim of a robbery has no choice but to succumb to the robbery.

17.  The bottle in this case was a  heavy glass bottle capable of causing severe injury if used as a weapon, especially if used about the head or, in any event, if it breaks before or whilst in use.  That when used to effect a robbery, it is properly called a weapon is surely beyond doubt.  That is the very purpose for wielding it; as a weapon.  Wielded or used in such circumstances -- as opposed, say, to standing on a shelf at home -- it is undoubtedly dangerous.  There are some societies abroad in which glass bottles are regularly used by thugs to very serious effect; and the sentence in Mo Kwong Sang which alludes to dangerous weapons should not, in our respectful judgment, be construed as one would construe a statutory provision but should, rather, be applied according to the evil against which the guideline is directed.

18.  In so far as the judge categorised the bottle as a non-dangerous weapon he was in our respectful judgment in error.  It is implicit from his sentencing approach that, on that basis, he adopted a starting point less than five years and only reached the five-year mark by taking into account factors other than the nature of the weapon.  We are of the opinion that for the use of a glass bottle of this kind to effect a robbery, a starting point of five years imprisonment was warranted.  Although this robbery was not constituted by an invasion of a private dwelling, it was used in a place where visitors can properly expect a degree of privacy and given that further fact, a sentence of at least 5½ years imprisonment was warranted.

19.  To the sentence of five years imprisonment at which the judge arrived, he added a further three months because of the “false report of indecent assault against the victim”.  The false report to which the judge was referring was the applicant's assertion to the police when challenged and in his interview that, far from having robbed the complainant, he, the applicant, had been the subject of an indecent assault.  That was his defence.  Unattractive though that defence was, it is not appropriate to take into consideration as an aggravating feature in sentencing the falsity or unattractiveness of a defence: it is relevant only to show a lack of remorse.  See R v Siu Hei-nam [1979] HKLR 188.  The judge ought not, on the basis of the false allegation, to have added anything to the sentence otherwise merited.  That is properly conceded by Mr Man for the respondent.  In the event, however, this error does not warrant a downward adjustment in the sentence imposed, given our conclusion that, subject to the next mentioned matter,  the overall sentence imposed was less than that in fact warranted

20.  One matter in mitigation was drawn to our attention, but not to the judge's, which in our judgment warrants a slight reduction, but not as much as to bring the correct sentence below five years three months imprisonment.

Conclusion

21.  Because there was an error in approach by the judge, in aggravating the sentence by reason of the defence offered by the applicant, we grant leave to appeal sentence but, for reasons which we have provided, the appeal against sentence is dismissed.