HKSAR v. WAN HING MAN

CACC 38/2026 [2026] HKCA 1587

On appeal from [2026] HKCFI 1319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2026

(ON APPEAL FROM HCCC NO 219 OF 2025)

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J U D G M E N T

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1.  The applicant (D2), Law Chun-ho (D1) and Wong Kai-koon (D3) were jointly charged with conspiracy to commit robbery, it being alleged that between 26 March and 3 April 2023, they conspired together and with Lau Cheuk-ting (Lau) to commit robbery (Count 1).  The applicant was also charged with possession of dangerous drugs (Count 2).  On 14 January 2026, having pleaded guilty to both charges before a magistrate, he was sentenced by Recorder Eric Kwok SC (“the Judge”) to a total term of 5 years and 8 months’ imprisonment, comprising consecutive terms of 5 years’ imprisonment on Count 1 and 8 months’ imprisonment on Count 2.  

2.  On 29 January 2026, the applicant applied for leave to appeal against sentence.  In his perfected grounds of appeal dated 3 June 2026, Mr Charles Chan SC, advanced two grounds of appeal on the applicant’s behalf.  Ground 1 alleges that the Judge erred in taking into account matters outside the prosecution case, namely the display of a weapon to the victim during the first robbery attempt[1], in which the applicant had no involvement or knowledge, thereby leading the Judge to take a more serious view of his culpability than was justified in the circumstances of the case.  Ground 2 contends that the sentence on Count 1 was manifestly excessive or wrong in principle.

3.  On 24 June 2026, the applicant applied for bail pending appeal but as the parties had addressed the grounds of appeal in their written submissions, it was directed that the leave application would be heard as well.  

The Summary of Facts

4.  The Summary of Facts outlined to the Judge and admitted by the applicant was as follows.[2] The victim, Mr Choi (Choi) was a patron of a mahjong parlour in Sau Mau Ping (the mahjong parlour) and habitually carried HK$50,000 to HK$60,000 in cash on each visit.  On 13 March 2023, D3 played mahjong at the same table as Choi and asked about his business and his pattern of visiting the mahjong parlour, during which Choi took out and counted his cash.  During the conspiracy period, D1 and D3 engaged in daily telephone calls.

The first robbery attempt

5.  At about 9:30 pm on 26 March 2023, Choi visited the mahjong parlour, while later that night, D1 and D3 gathered at a nearby restaurant (the restaurant) and remained in the vicinity.  Shortly before midnight, Choi left the mahjong parlour and walked home carrying HK$40,000 to HK$50,000 in cash, a gold necklace, a gold bracelet and a mobile telephone.  As he passed by a shop at Yee On Centre, D1, who had been standing on the road opposite, approached him from behind, choked him by the neck while holding a cutter with its blade exposed.  D1 claimed to be a police officer and demanded all of Choi’s possessions.  While Choi pushed D1’s right hand away, D1 searched Choi’s jacket pocket with his left hand.  They then struggled and fell twice before Choi yelled, whereupon D1 fled.  D3 and Lau (D1’s girlfriend) immediately followed D1 and they took the MTR from Ngau Tau Kok to Telford Plaza in Kowloon Bay, where they remained for about an hour. 

6.  Choi suffered a superficial laceration to his neck and an abrasion to his right knee.

The second robbery attempt  

7.  At about 7:30 pm on 3 April 2023, Choi again visited the mahjong parlour.  At about 10:15 pm, the applicant, D1, D3 and Lau gathered at the restaurant and remained nearby.  At about 11:30 pm, Choi left the mahjong parlour carrying approximately HK$60,000 in cash and walked home.  As Choi passed by a shop at Yee On Centre, the applicant and D1 pushed Choi to the ground from behind and struck his head and body with their fists and hard objects.[3]  They searched Choi’s pockets but were unable to retrieve anything.  Choi yelled for help, and police officers, who were patrolling nearby, intercepted the applicant and D1 at the scene at about 11:38 pm.  Choi identified them as his assailants in the attempt to rob, and D1 as his assailant in the previous attempted robbery.

8.  Choi suffered a haematoma to the head and, bruising and abrasions around both eyes.

9.  D1 said under caution that Choi was targeted because he had lived a life that was too high profile.

10.  The police officers searched the applicant at the scene and found in his shoulder bag and in one of his socks two resealable plastic bags of dangerous drugs[4], which formed the basis of Count 2.[5]  Upon his arrest, the applicant said under caution that the bags contained “Ice” and “coke” for his own consumption.[6]  

11.  At the police station, the police officers searched the applicant and inside his shoulder bag, they found an extendable metal baton, which he admitted under caution he carried for “hitting someone”.[7]

12.  In a subsequent video recorded interview, the applicant stated that, earlier on 3 April 2023, D3 had asked to meet him.  He said that he, D1, D3 and Lau met in Kowloon Bay that night and travelled together to the restaurant, where, in the presence of D3 and Lau, he and D1 discussed the plan to target Choi that night.  D1 offered him a remuneration of several tens of thousands of dollars to participate in the robbery of Choi.  During the second robbery attempt, D1 signalled him to attack Choi, and they both assaulted Choi, punching his head.

13.  On 4 April 2023, D3 was arrested.  In a video recorded interview, D3 stated that he, the applicant and D1 were friends, and Lau was D1’s girlfriend.

The applicant’s background and mitigation

14.  At the time of sentence, the applicant was 38 years old, educated to Form 3 level, and was unemployed prior to his arrest.  He had five previous convictions including two for acting as a member of a triad society in 2004; two for trafficking in a dangerous drug, for which he was sentenced to 2 years and 10 months’ imprisonment in 2011 and 4 years and 8 months’ imprisonment in 2014; and one for making off without payment in 2021.[8]

15.  In mitigation, defence counsel submitted that the applicant joined the conspiracy on 3 April 2023 and only took part in the second robbery attempt.  The victim suffered no financial loss and there was no suggestion that he sustained any permanent injuries or disability.  Although the applicant admitted possessing the extendable metal baton, it was found in his bag at the police station rather than on arrest, and there was no evidence that it was the hard object used to strike the victim.[9]  While accepting that this was a serious case, counsel contended that, if it were to be treated as a head-bashing robbery, it fell at the lower end of that category[10].  

The sentence

16.  The Judge referred to the guidelines in Mo Kwong-sang v The Queen[11] concerning sentences for robberies involving weapons.  He identified several aggravating factors in this case, including that this was a conspiracy to commit robbery; the plan was executed on two occasions just over a week apart; it was a pre‑planned robbery targeting a particular victim known to carry large amounts of cash; and it involved at least two offenders in the first attempt and at least three in the second.[12]  There was no dispute that these aggravating factors were relevant to the determination of the applicant’s sentence[13].

17.  By reference to Secretary for Justice v Ma Ping Wah[14], the Judge considered that this was not a head-bashing robbery, noting that the deliberate blow to the victim’s head was not intended to knock him out to facilitate the robbery.  However, he found that the physical violence used was severe, as it was directed at the victim’s head and caused head injuries.  He noted that, in such circumstances, the appropriate sentence where physical violence was used would be 7 years’ imprisonment, as suggested in Mo Kwong-sang.[15]  

18.  In sentencing the applicant, the Judge noted that he was only involved in the second robbery attempt.  He adopted a starting point of 7 years and 6 months’ imprisonment on Count 1, which he reduced by one third for his guilty plea to 5 years’ imprisonment.  On Count 2, he adopted a starting point of 12 months’ imprisonment and reduced it to 8 months for his guilty plea.  Bearing in mind the totality principle, he ordered the sentence on Count 2 to run consecutively to that on Count 1, resulting in a total term of 5 years and 8 months’ imprisonment. 

19.  As for D1, the Judge adopted a starting point of 8 years and 6 months’ imprisonment on Count 1, which he reduced by one third for his guilty plea to 5 years and 8 months’ imprisonment.[16]

20.  As for D3, the Judge adopted a starting point of 8 years and 3 months’ imprisonment, which he reduced by one third for his guilty plea to 5 years and 6 months’ imprisonment.  He rejected the contention that D3 was merely a lookout, noting that he knew the victim carried large amounts of cash and when he frequented the mahjong parlour, and that he was present in the vicinity to tip off and identify the victim to D1, having been seen mingling with D1 on both occasions before the robbery attempts.  Given the conspiratorial nature of the offence and the different roles played by each defendant, the Judge declined to differentiate D3’s role from that of D1.  He also noted that D3 had declined a Newton hearing on whether he was aware that a weapon would be used.[17]

Discussion

21.  The issue is whether a notional starting point of 7 years and 6 months’ imprisonment was too high in light of the circumstances of the attempted robbery and the applicant’s role and culpability.

22.  The Judge conscientiously applied the principles in Mo Kwong Sang.  He noted that, in an ordinary case of armed robbery where a weapon is displayed, the sentence would be 5 years’ imprisonment, and if any physical violence is used on the victim, a sentence of 7 years’ imprisonment should be considered.  A sentence should be increased if there are other aggravating factors, such as the presence of more than one robber and a multiplicity of offences of a similar kind.  The Judge was persuaded that this was not a head-bashing robbery because there was no deliberate blow to the victim’s head aimed at knocking him out, but nevertheless acknowledged that violence was used on the victim’s head and that he sustained injuries. 

23.  I have difficulty accepting this finding based on the agreed facts and the statement of principle concerning head-bashing robberies as set out in Ma Ping Wah[18].  The Court of Appeal stated that a separate guideline was warranted for head-bashing robberies, noting that a robber who deliberately strikes a blow or blows to a victim’s head with a weapon capable of causing brain injury commits a particularly dangerous act.  The Court held that where the robber, or a culprit intent on robbery, struck a deliberate blow to the head with a weapon capable of causing injury to the brain, the sentence, following a contested trial, should not be less than 8 years’ imprisonment.  This was not a straitjacket and, depending on the circumstances, a lesser sentence could be imposed; and, depending on how severely the victim was injured, a greater sentence could be imposed.[19]

24.  It was an admitted fact that the applicant and D1 “punched Choi’s head and body with fists and some unknown hard object(s).”[20]  It was also an admitted fact that an extendable metal baton was retrieved from the applicant’s shoulder bag, which he admitted he carried for “hitting someone”.[21]  Whilst the Judge did not characterise the case as a head-bashing robbery, he nevertheless acknowledged that Choi had been struck to the head and had sustained injuries.  This was obviously a factor, together with others, that he took into account when he adopted an appropriate starting point of 7 years and 6 months’ imprisonment.  I should add that the Judge noted that the applicant was only involved in the second robbery attempt, and it was in respect of that robbery attempt that the Judge passed sentence on the applicant.

25.  The injuries the victim sustained were “haematoma over the right parietal region, and redness and abrasions over bilateral periorbital regions”[22].  In other words, the victim received a blow or blows to the right side of his head, causing a swelling of blood, and to his face and eyes, causing redness and abrasions.  The assault on the victim was directed to his face and head.

26.  In HKSAR v Limbu Binod[23], I set out the factors or features that are usually taken into account when determining the sentence for robbery:

“23.  … In robbery cases, a sentencing court when assessing the starting point to be adopted will take into account aggravating factors or features that reflect the gravity of the offence and the culpability of the offender, such as the circumstances and location of the robbery, the target of the robbery, the degree of planning and execution involved, the level of force or violence, the extent of the injuries sustained by and impact on a victim or victims, the nature and use of a weapon, the number of offenders, the use of clothing to disguise the identity the offenders, and the items or property taken.”

27.  As I stated at the outset of the hearing, in order for the applicant to succeed in his application for leave to appeal against sentence, he had to demonstrate that he had a reasonably arguable ground that the starting point adopted for the second robbery attempt of 7 years and 6 months’ imprisonment was manifestly excessive. 

28.  After careful consideration of the facts and circumstances of this case, I am not persuaded that it is reasonably arguable that the sentence imposed on the applicant was manifestly excessive.  The second robbery attempt was well planned and executed, involved monitoring and targeting a victim a second time, in the knowledge that he would be leaving a mahjong parlour with a large quantity of cash.  The robbery took place in a public street, late at night, involving the applicant and D1 attacking the victim by pushing him to the ground and punching and hitting his face and head with their fists and a hard object.  The only hard object that was retrieved from the assailants was a metal baton found in the applicant’s bag.  He admitted that he had the baton in his bag for the purpose of “hitting someone” and that he was to receive a remuneration of several tens of thousands of dollars for his participation in the robbery.

Conclusion

29.  For the foregoing reasons, the applicant’s leave application against his sentence is refused, and for the same reasons, his application for bail pending appeal is also refused.

30.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction that any time spent in custody pending his appeal not count towards the service of his sentence if the Court were to come to the view that there was no justification for the renewal of his application.

[1]  The case involved two robbery attempts, which took place on 26 March 2023 and 3 April 2023 respectively.

[2]  Appeal Bundle (AB), 5-9.

[3]  See AB, 7, at [8].

[4]  Containing 0.82 gramme of a crystalline solid containing methamphetamine hydrochloride (commonly known as Ice) and 0.16 gramme of a solid containing cocaine respectively.

[5]  AB, 8, at [8(a)-(b)].

[6]  AB, 8, at [9].

[7]  AB, 8, at [10].

[8]  AB, 39-41.

[9]  AB, 30-33.

[10]  AB, 30Q-S.  See also AB, 21N-23R.

[11]  Mo Kwong-sang v The Queen [1981] HKLR 610, at [12]-[15].

[12]  AB, 14H-J.

[13]  Applicant’s Written Submission dated 24 June 2026, at [35].

[14]  Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312, at [19].

[15]  AB, 15K-R.

[16]  AB, 15S-U.

[17]  AB, 16H-17C.

[18]  Ma Ping Wah, 319I-320E. 

[19]  Ma Ping Wah, 320B-E.

[20]  AB, 7, at [8].

[21]  AB, 8, at [10].

[22]  AB, 9, at [11].

[23]  HKSAR v Limbu Binod, unrep., CACC 64/2021, 28 September 2021.