HKSAR v. ANDRIANIAINA ADRIEN LUCK YU PAU

CACC 129/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 129 OF 2016

(ON APPEAL FROM DCCC NO. 104 OF 2016)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  With the leave of McWalters JA, granted on 16 November 2016, the appellant appeals against the sentences imposed on him on 14 April 2016 by Deputy District Judge Joseph To, following his convictions on his plea of guilty on 29 March 2016 to four charges committed on 17 November 2015, namely: taking a conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap. 210 (Charge 1); dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374 (Charge 2); using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 (Charge 3) and robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 (Charge 4).

2.  The appellant was sentenced to a total of 60 months’ imprisonment.  The judge imposed the following sentences in respect of the charges:

Charge 1 - 8 months’imprisonment;

Charge 2 - 16 months’ imprisonment

Charge 3 - 6 months’ imprisonment; and

Charge 4 - 40 months’ imprisonment.

3.  The judge ordered that 4 months of the sentence of imprisonment imposed in respect of Charges 1 and 3 was to be served consecutively to the sentence of 16 months’ imprisonment imposed in respect of Charge 2.  Further, that the resulting total sentence of 20 months’ imprisonment, imposed in respect of Charges 1, 2 and 3, was to be served consecutively to the sentence of 40 months’ imprisonment imposed in respect of Charge 4.  Accordingly, the total sentence imposed on the appellant was 60 months’ imprisonment.

4.  In addition, the appellant was disqualified from driving all types of vehicles in Hong Kong for a period of 18 months.  In respect of Charge 2, the judge ordered the disqualification to commence on the date of sentence.  In respect of Charge 3, the judge ordered that the same period of disqualification was to commence on the date of conviction.  Finally, the appellant was also ordered to complete a driving improvement course within 3 months of his discharge from prison.

The facts

Charges 1 to 3

5.  At around 6:45 a.m. on 17 November 2015, the driver of a light goods vehicle KK 4542 left his vehicle temporarily unattended outside Ground Floor, No. 50 Pitt Street, Mongkok, Kowloon.  The appellant boarded the vehicle and drove it away.  Having driven past the junction of Waterloo Road and Dundas Street, the appellant halted the vehicle and then reversed it against the flow of traffic on Waterloo Road back to the junction.  There, he made a left turn into Dundas Street, from where he drove down Yin Chong Street in the direction of Fa Yuen Street, ramming into four street stalls along the way.  Then, he reversed the vehicle at speed, once again against the flow of traffic; on reaching the junction of Yin Chong Street and Kwong Wah Street, he backed the vehicle into Dundas Street against the flow of traffic, until he reached the junction between Dundas Street and Waterloo Road.  Next, he careered onto and travelled on the pavement of Waterloo Road, damaging the exterior of two shop premises and the entrance of a McDonalds Restaurant.  There, he stopped the vehicle and reversed it along the pavement onto the carriageway of Waterloo Road.  In so doing, he collided with and damaged a set of traffic lights and the metal railing on the pavement.  Finally, the appellant stopped the vehicle in Yim Po Fong Street.

Charge 4

6.  At 6:58 a.m., the appellant alighted from the vehicle and entered the lobby of the Stanford Hotel at 118 Soy Street, Mongkok.  There, at the front desk, he pointed a screwdriver at a male member of the hotel staff and shouted “Robbery, sound the alarm.”  Then, he entered the front desk area and picked up the handset of a landline telephone and pressed the dialling buttons.  Next, he picked up the mobile telephone belonging to a member of the staff at the hotel.  Having thrown the handset of the landline telephone onto the desk, the appellant left the hotel taking with him the mobile telephone.

7.  At around 7:10 a.m., the appellant was intercepted by a police officer about 20 metres from the Stanford Hotel, at 15 Kwong Wah Street.  Two screwdrivers, measuring 18 and 21 cm respectively, were recovered from his rear trouser pocket.  However, the mobile telephone was never recovered.  Under caution, the appellant asserted that he entered the hotel in order to use the toilet, but was refused permission to do so by a member of the hotel staff.  In response, he had declared robbery and stolen the mobile telephone, which he had abandoned in the rear lane outside the hotel.

8.  In a subsequent video recorded interview, the appellant admitted having committed the offences, explaining that he had consumed “Ice” in a park shortly before the commission of the offences.  He said he had driven the stolen vehicle away for fun.  He claimed that he had the two screwdrivers, which had been found in his possession on arrest, for purposes of his work.  Again, he re-asserted his claim that, having been refused permission to use the toilet by a member of the staff of the hotel, he had seized and taken away a mobile telephone belonging to a member of the staff from the front desk.  He said that he had done so in anger.

9.  The total damage to the street stalls and shops amounted to $174,800; whilst the estimated cost of repairing the damage caused to the vehicle was around $70,000.  In addition, 12 drums of oil had fallen from the goods vehicle as it was driven by the appellant.

Reasons for sentence

10.  In sentencing the appellant, the judge acknowledged that he was a 55-year-old man who had lived in Hong Kong, where he had been educated and had worked, since he was eight years of age.  Although the appellant had a conviction for a minor criminal offence in 1982, the judge said that he treated him as if he was a man of previous good character.  The judge noted that Mr Victor Cheung, who appeared for the appellant in the lower court as well as in this court, informed the Court that the appellant was not in a position to make any offer of payment of compensation and he invited the Court to impose concurrent sentences in respect of all charges.

Taking a conveyance without authority

11.  Having noted that the maximum penalty for the offence of taking a conveyance without authority is 7 years’ imprisonment, the judge said that regard was to be had to be reasons that the vehicle was taken.  He said that there was “insufficient justification that the defendant had the intention to commit a robbery” when he took the vehicle.  Nevertheless, he said that he had regard to the fact that there was “substantial damage” caused to the vehicle by the appellant and the loss of the waste products which had fallen from the vehicle as it was driven by the appellant.[1]

Dangerous driving

12.  Having noted that the maximum sentence for the offence of dangerous driving was 3 years’ imprisonment, the judge said that the “threshold conditions for a 50% enlargement of the maximum sentence” were not satisfied.  In particular, a nil result had been obtained when the appellant had been subjected to a Screening Breath Test and a Drug Influence Recognition Observation.  Furthermore, the judge observed that there was no evidence that the appellant’s blood or urine had been tested for the presence of any specific dangerous drug.  Nevertheless, the judge identified factors which he said were aggravating factors in the commission of the offence:[2]

“ First, the defendant admitted to the police that he had consumed “ice” shortly before the incident.  Secondly, as evidenced by the skid marks, he had driven the car at speed and had done so in an erratic manner: backing or reversing the car against the flow of traffic and on the pavement, ramming into four street stalls, and running into three shops.  Thirdly, his manner of driving had caused damage to private property of a significant value.  Fourthly, some of the damaged property belonged to the government.  The fact that no one has been injured by the defendant was entirely fortuitous.”

Using a motor vehicle without third party insurance

13.  Of the appellant’s culpability in respect of the offence of using a motor vehicle without third party insurance, the judge noted that the damage to property was of “substantial value.”

Robbery

14.  Having referred to the judgment of this Court in Mo Kwong Sang v The Queen [3], in particular to the statement that the sentence of imprisonment to be imposed for the offence of robbery “…where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years”, the judge said “There is no reason whatsoever in the instant case not to adopt 5 years’ imprisonment as the starting point” for the offence of robbery.  Further, he said that the fact that that the appellant had committed the offence “…under influence of a dangerous drug can hardly amount to a mitigating circumstance.” [4]

Starting point for sentence

15.  The judge stipulated the following terms of imprisonment as the appropriate starting point to be taken to sentence in respect of each of the charges :

Charge 1 - 12 months’ imprisonment;

Charge 2 - 24 months’ imprisonment;

Charge 3 - 9 months’ imprisonment;

Charge 4 - 5 years’ imprisonment.

Discount

16.  For the appellant’s pleas of guilty, the judge stated that he afforded the appellant a discount of one-third from the sentence identified as the starting point for sentence.

17.  Of the nature of the offences, the judge said:[5]

“ The court agrees that the first to the third charges do share the same factual origin, justifying a consideration of a concurrent sentence, either in whole or in part, for the three offences. The court is unable to see how those three offences and the robbery charge can be said to be connected, causally or logically.”

Totality

18.  Of the totality of sentence, the judge said:[6]

“ Applying the totality principle, it is ordered that the sentences for the first and the third charges be served concurrently, resulting in a concurrent sentence of eight months’ imprisonment for the two offences. Four months of the concurrent sentence for the first and the third charges are to be served consecutively to the 16 months’ imprisonment in respect of the second charge, making a total sentence of 20 months for the three offences. It is ordered that the 20-month sentence for the first three charges is to be served wholly consecutively to the 40 months’ imprisonment for the robbery offence in the fourth charge. The final sentence for the four offences is one of 60 months’ imprisonment.”

19.  Finally, the judge noted that the “effective global starting point” for the four charges was a sentence of 7½ years’ imprisonment, which he determined to be “warranted”.  He said that, having regard to the jurisdictional limit of the District Court, namely 7 years’ imprisonment, the total sentence of 5 years’ imprisonment imposed on the appellant “allowed for a meaningful discount from the Court’s jurisdiction limits.” [7]

Grounds of appeal against sentence

20.  In his grounds of appeal against sentence Mr Cheung submitted that:

 (i) the starting point of 5 years’ imprisonment taken by the judge in respect of Charge 4 was excessive, in that the judge had failed to note the unusual circumstances in which the offence was committed and which justified the departure from the normal sentencing guideline laid down in Mo Kwong Sang;

 (ii) the judge erred in not ordering the sentences imposed in respect of all of the charges be served concurrently;

 (iii) the judge was wrong in principle to order that 4 months of the concurrent sentences of imprisonment imposed in respect of Charges 1 and 3 be served consecutively with the sentence imposed in respect of Charge 2;

 (iv) the judge failed to give sufficient regard to the principle of totality in sentencing the appellant, in particular that a total sentence of 5 years’ imprisonment imposed on the appellant implied a notional global starting point for sentence of 7½ years’ imprisonment; and

 (v) In all the circumstances, the overall sentence of 5 years’ imprisonment was wrong in principle and manifestly excessive.

Robbery

21.  In his written submissions Mr Cheung invited the Court to note that in his judgment in Mo Kwong Sang v The Queen that, although this Court had said that regard was to be had to the fact that the accused had displayed to his victim “a knife or other dangerous weapon”, it had not condescended to define the latter phrase.  He submitted that the screwdriver displayed by the appellant to the victim of the robbery in this case was not a ‘dangerous weapon’ per se.  However, at the hearing he conceded that the screwdriver was to be regarded as a dangerous weapon.  Nevertheless, he contended that the display of a screwdriver to the victim of a robbery was of an implement which was less serious in its nature than a knife.  He submitted that in sentencing the judge should have had regard to the fact that it had different characteristics from that of a knife.

22.  Mr Cheung submitted that although the offence of robbery was the commission of an offence that was separate and distinct from the other offences, nevertheless it arose out of the same incident and course of events.  Accordingly, he contended that the sentences imposed in respect of all four charges ought to have been ordered to be served concurrently.

Respondent’s submissions

Robbery: other dangerous weapons

23.  For the respondent, Mr Derek Wong submitted in his written submissions that a screwdriver can be as threatening as a knife.  That was particularly so in the present case, where the appellant was intoxicated by Ice and was in an excitable condition.  A momentary loss of control could have resulted in serious injuries.  The Court was invited to note that in its judgment in HKSAR v Ng Kai Kwong [8], in refusing leave to appeal against conviction, this Court rejected the submission that a screwdriver was not as offensive a weapon as a knife:

“ In these circumstances, a screw driver is as threatening as a knife to a vulnerable victim of a robbery and it was fortunate that no injury had been caused to her. The judge rightly took 5 years as the starting point and gave 1/3 discount for the applicant’s plea.”

24.  Of the submission that the appellant only acted on the spur of a moment, the respondent invited the Court to note that the appellant had expressly declared “Robbery” before he took the mobile telephone.  There was no reason to depart from the sentencing guidelines simply because of the absence of premeditation.

25.  Finally, Mr Wong submitted that the offences reflected in Charges 1 to 3 and the offence the subject of Charge 4, were clearly separate and distinct offences.  The offences related to the taking and the subsequent use of the goods vehicle and were entirely unconnected with the offence of robbery.  The judge was entitled to order the sentence imposed in respect of Charge 4 to be served wholly consecutively to the sentences imposed in respect of Charges 1 to 3. 

A consideration of the submissions

Robbery

26.  As Mr Wong pointed out, in the judgment of this Court in HKSAR v Ng Kai Kwong the submission that the screwdriver used in the commission of the robbery “was not as offensive a weapon as a knife” was rejected.  In that case, the applicant confronted the victim as she was returning to her place of work, pointing a screwdriver at her chest and declaring robbery.  As noted earlier, having noted the screwdriver was 6 inches long, Leong JA, as Leong CJHC was then, said:

“ In these circumstances, a screwdriver is as threatening as a knife...”

27.  The Court determined that the judge had been correct to advert to the judgment of this Court in Mo Kwong Sang in stipulating a starting point for sentence of 5 years’ imprisonment.

28.  At the hearing, at the request of the Court, the CCTV recording relevant to the appellant’s conduct in the hotel was played in court.   Its existence was adverted to in the Summary of Facts.  Also, the Court examined the black screwdriver that it was admitted the appellant had held in his hand as he made his way into and whilst he was in the hotel.  It was 21 cm in length.  The CCTV recording depicts the appellant entering the hotel lobby brandishing the screwdriver, with his shirt wrapped around his head.  First, he made his way directly to the lobby counter.  Secondly, he made his way behind the counter, in response to which movement the male member of staff retreated away from the appellant.  Then, he was seen to rummage around, picking up the headset of a landline telephone.  Finally, the appellant picked up the mobile telephone and left the counter area, exiting the hotel through a rear entrance.

29.  It is to be noted that Mr Cheung’s submission to the judge that the screwdriver “…in the ordinary sense is not a dangerous weapon” was met by the response of the judge “…it depends on how it is used.”  Of course, that was correct.  Clearly, the screwdriver was displayed as reinforcing the threat of violence to the victim implicit in the robbery.  Here, the appellant brandished the screwdriver from the very moment that he entered the hotel lobby.  He continued to do so at and behind the counter.  The implied threat of the use of force was clear.  Obviously, in all the circumstances, the screwdriver fell to be regarded as a dangerous weapon.  We are satisfied that the judge was correct to stipulate a starting point for sentence of 5 years’ imprisonment for Charge 4.

Taking a conveyance without authority

30.  In The Queen v Tam, Simon [9] Chan J, as Chan NPJ was then, having adverted to the judgments of this Court in The Queen v Leung Yam Hung and The Queen v Wu Yat Cheung said:[10]

“ Apart from these cases, I do not think there are any authorities setting down the usual tariff for taking conveyance of vehicles (sic).”

Chan J went on to say:

“ It does appear that there can be a wide range in the sentence for such offence, ranging from a case of a person taking a car for a joy-ride at one end to a person taking a car in connection with the participation of a serious crime at the other. One has to bear in mind that the maximum penalty upon a conviction on indictment is seven years.”

31.  In HCMA 489/1996, having pleaded guilty, the appellant was sentenced to 6 months’ imprisonment for taking a conveyance without authority in November 1995, one month’s imprisonment for driving a vehicle without a valid driving licence and fined $3,000 and driving a vehicle without third-party insurance.  The judge ordered the sentence of 6 months’ imprisonment imposed for taking a conveyance without authority to be served consecutively to the sentences of imprisonment imposed in respect of HCMA 490/1996.

32.  In HCMA 490/1996, having pleaded guilty, the appellant was sentenced to 12 months’ imprisonment for each of two charges of taking a conveyance without authority, in a period of two weeks in late July to mid‑August 1995, and to 3 months’ imprisonment for each of two charges of theft from a vehicle.  One of the charges of theft was of a vehicle number plate taken from a third vehicle, whereas the other charge of theft was of property from one of the two vehicles.  The judge ordered the two sentences of imprisonment imposed for the theft charges to be served consecutively with each other, the two sentences of imprisonment imposed in respect of the taking a conveyance to be served concurrently with one another but consecutively to the total sentence of 6 months imposed in respect of the two charges of theft.

33.  Of the sentences imposed in respect of the three offences of taking a conveyance without authority, Chan J said:[11]

“ Without setting a guideline for this type of offence, I should think that the sentence of 6 to 12 months imposed in the present case after a plea cannot be regarded in anyway as wrong in principle or manifestly excessive. I note that in these two cases, what happened was that on three different occasions, the appellant took conveyance of three vehicles without authority. The total sentence of 18 months consisting of 12 months in the first case for the two offences (both to run concurrently) and six months in the second case would mean effectively 18 months for a succession of similar offences committed within a period of a few months. This cannot be regarded as excessive.”

34.  In The Queen v Leung Yam Hung[12], the applicant was convicted after trial of a count of wounding with intent.  In the course of the trial, the appellant had pleaded guilty to a charge of taking a conveyance without authority.  He was sentenced to 12 months’ imprisonment for the latter charge.  This Court quashed the appellant’s conviction on the count of wounding with intent.  Of the sentence imposed in respect of the charge of taking a conveyance without authority, Silke JA, as Silke VP was then, said:[13]

“ The sentence passed upon the taking of the conveyance charge was one of 12 months’ imprisonment. One of the reasons given by the trial judge, based on the matter as it then stood before him, for the passing of this sentence was that there is a distinction to be drawn between taking a car for a joy-ride and taking one for the purpose of committing a serious crime. He felt that the taking away here fell into the second category. That reason has, of course, now gone. We think that a sentence of in or about 6 months would have been the appropriate for an isolated charge of this nature without the overlay of the taking of the car for the purpose of participation in a serious criminal offence.”

35.  As noted earlier, the judge determined that there was an insufficient evidential basis to find out the appellant had the intention to commit robbery at a time when he had taken the goods van and driven it away.

36.  Given that the taking of the goods van without authority was a single offence and that the appellant was of previous good character, we are satisfied that the judge erred in stipulating a starting point for sentence of 12 months’ imprisonment.  Rather, the appropriate starting point for sentence was 9 months’ imprisonment.  Affording the appellant a discount of one-third for his plea of guilty, the appropriate sentence is 6 months’ imprisonment.

Dangerous driving

37.  We are satisfied that the judge was correct to identify the factors of aggravation in the commission of the offence of dangerous driving to which we referred earlier.  Clearly, as evidenced by the skid marks, the appellant had driven the vehicle at speed and erratically.  Given that the appellant had driven the vehicle onto the pavement, so that it made contact with the exterior of two shops and the McDonald’s restaurant, the judge was entitled to find that the fact that no one had been injured was “entirely fortuitous”.  The judge was entitled to stipulate a starting point for the sentence of 24 months’ imprisonment and, affording the appellant a discount of one-third for his plea of guilty to this offence, to impose a sentence of 16 months’ imprisonment.

Using a motor-vehicle without third-party insurance

38.  As Yeung J, as Yeung VP was then, observed in his judgment in HKSAR v Wong Chi Ming [14] the seriousness of the offence of using a motor-vehicle without third-party insurance “…lies in the possibility of the victims in traffic accidents may be left without any compensation.”  That possibility appears to have become reality in this case, given the extent of the damage caused by the appellant and the submission made on his behalf to the judge that “…the defendant has no financial ability to make any compensation either for the mobile phone or any property damages”.[15]  It is to be noted that Yeung J refused the appeal against sentences of 4 months’ imprisonment imposed on the appellant’s conviction on his pleas of guilty for the offences of using a motor-vehicle without third-party insurance and for driving whilst disqualified, which sentences were ordered to be served concurrently.  In that case, the appellant had been disqualified on four previous occasions and had previous convictions for using a motor vehicle without insurance.

39.  As the judge noted, the maximum sentence for the offence of using a motor-vehicle without third-party insurance is 12 months’ imprisonment.  In all the circumstances of this case, having regard to the fact that the appellant has no previous convictions for that offence, we are satisfied that the judge erred in stipulating a starting point for sentence of 9 months’ imprisonment.  Rather, the appropriate starting point for sentence was 6 months’ imprisonment.  Affording the appellant a discount of one-third for his plea of guilty to this offence, the appropriate sentence is 4 months’ imprisonment.

40.  With respect to the judge, we agree that it is appropriate that the appellant’s overall culpability for taking the conveyance without authority and for the subsequent driving offences is to be reflected appropriately by ordering that some part of the sentences for Charges 1 and 3 be ordered to be served consecutively to the sentence imposed in respect of Charge 2.  However, given our conclusion that the sentences that the judge imposed in respect of Charges 1 and 3 were too high and noting the reduced sentences that we impose, we are satisfied that the appellant’s overall culpability for these offences is reflected appropriately by ordering that 2 months of the sentences imposed in respect of Charges 1 and 3 be served consecutively to the sentence of 16 months’ imprisonment imposed in respect of Charge 2.

Totality

41.  In determining the appropriate totality of sentence, it is necessary to take a step back from a consideration of the appropriate sentences for each of the separate offences.  Regard is to be had to the fact that the appellant was a 55-year-old man at the time of the commission of the offences who had apparently led a productive working life and, in particular, to the fact that he was to be treated as a man of no previous criminal convictions.  In a short period of time he visited disaster on himself.  In all the circumstances, we are satisfied that the appropriate totality of sentence is to be achieved by ordering that 8 months of the sentence of imprisonment imposed in respect of Charges 1 to 3 be served consecutively to the sentence of 40 months’ imprisonment imposed in respect of Charge 4.

Conclusion

42.  For the reasons that we have given, we allow the appeal against sentence, quash the sentences of 8 months and 6 months’ imprisonment respectively imposed in respect of Charges 1 and 3.  In their place, we substitute sentences of 6 months and 4 months’ imprisonment respectively, which we order to be served concurrently.  We order that 2 months of those sentences of imprisonment be served consecutively with the sentence of 16 months’ imprisonment imposed in respect of Charge 2.  Finally, we order the 8 months of the sentence of imprisonment imposed in respect of Charges 1 to 3 be served consecutively to the sentence of 40 months’ imprisonment imposed in respect of Charge 4.  Accordingly, the total sentence imposed on the appellant is 48 months’ imprisonment.