HKSAR v. LEE MING FAI AND OTHERS

CACC698/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 698 OF 1997

(ON APPEAL FROM DCCC354 OF 1997)

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J U D G M E N T

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Stock, J. (delivering the judgment of the Court) :

1. The 3rd applicant in this case applies for leave to appeal against his conviction for robbery. He and the two other applicants who originally appeared before us this morning - one of whom maintains before us an appeal against sentence - were convicted after trial in the District Court upon a joint charge of robbery.

2. The facts emerging from the prosecution case were these. The complainant in this case was a visitor from Northern China. His evidence was that in January 1997, he and friends were window-shopping in Mongkok and he split from them at one stage to visit a book shop upstairs at 64 Sai Yeung Choi Street. There, he found nothing of particular interest, so he went upstairs to a shop which advertised itself as a shop selling movie videos. Inside the shop, seated at a desk was the 1st defendant to whom it became clear that the complainant was a mainlander for he said so and spoke Mandarin. The 1st defendant conversed with him, said something to the complainant about young girls and tried to interest him in pictures of nude people. He sought to persuade him to buy some videos showing naked girls, but the complainant was not interested and made that clear.

3. The 1st defendant became insistent and the complainant said he was leaving, at which point an already unsavoury and oppressive atmosphere turned to nastiness. The door was locked and the complainant could not depart. The 1st defendant became menacing, saying that the complainant could not leave and that he had friends in the area. The 2nd defendant came into the room. He held a burning cigarette close to the complainant's forehead and a threat was made to the complainant that he was going to be badly burnt. The evidence was that the 3rd defendant entered brandishing a small knife which he held to the complainant's throat, that the 2nd defendant kicked him and that the other two then joined in a beating which lasted several minutes, and that he was punched and kicked after the assault had caused him to fall to the ground. He said he had no money to make the purchases which they had urged upon him, and so they rifled through his clothes and found $250, $200 of which they kept. He was further punched and threats were made against him in order to bring home to him what would happen if he reported the incident. He undertook not to make a report and he was kicked out of the door.

4. The defence put to him was that he went in and asked for some condoms, and that $200 was payment for the condoms, and that thereafter there was an argument, in the course of which the complainant was assaulted and that there was a fight to which the complainant was an active party. It was accepted that a knife was seen, but only in the sense that this applicant (the 3rd defendant) happened to have a letter-opener in his hand.

5. The prosecution adduced the testimony of a number of police officers who went to the shop in Sai Yeung Choi Street. The three defendants were inside and the complainant identified the three men and specified the part they played. There was evidence that from this applicant was taken a knife as well as $200 from his trousers. The defendants were spoken to, arrested and cautioned and were said by the police witnesses to have made incriminating responses. They were taken to Mongkok Police Station where their earlier responses were reduced to writing into notebooks, and the notebooks signed by the respective defendants including this applicant.

6. The admissibility of the evidence of these alleged admissions was challenged and the officers were fully cross-examined. Two of the defendants gave evidence on the issue of admissibility. That included this applicant who gave evidence of assaults to which he said he was subjected.

7. In support of his application today the applicant asserts in his written grounds that the judge ought not to have ruled his statement to the police admissible, and he seeks further to advance his appeal by an exculpatory account of his role in the events in question. We are satisfied that there is no merit in the attack on the judge's approach to the case or his findings. As for the admissibility of the statement made by the applicant, the learned judge applied the correct test in law, took into account such discrepancies in evidence as there were, and believed the evidence of the prosecution witnesses. There is simply no basis upon which his findings can be undermined.

8. On the general issue, he was entitled to believe the evidence of the complainant, and he did believe it. That was sufficient to found a conviction on the facts of the robbery charge. It accordingly follows that there is no merit in the appeal advanced. The application of the 3rd applicant for leave to appeal against conviction is therefore refused.

9. The 2nd applicant has abandoned his application to appeal against conviction, which leaves us only with his application for leave to appeal against sentence.

10. The judge imposed upon him, as he did upon the other defendants, a sentence of five years' imprisonment. The learned judge referred in doing so to the case of Mo Kwong Sang [1981] HKLR 610 which suggests that a sentence of this order is appropriate for robbery with the use of a knife. He commented that this particular case had aggravating features, namely, that there were three men ranged against one victim, that the victim was trapped inside the shop, in other words locked in, and that he was also assaulted.

11. The applicant is aged 27 years. He has previous convictions for theft and possession of obscene publications. There is a probation officer's report which we have read. He is a married man with children.

12. It is said in the written grounds in support of this application that there was no premeditation to the robbery, merely an unjustified endeavour to pressure the complainant into purchasing merchandise, and that the knife was merely a letter-opener; and that the application by the learned judge of the Mo Kwong Sang 'tariff' was not appropriate.

13. We have had the singular advantage today of hearing oral submissions on behalf of this applicant from Mr Macrae who has amplified upon these written grounds. He emphasizes how this is not to be, in his submission, equated with a normal case of robbery; the circumstances in which he says the argument between the victim and the defendants developed; and the fact, as he puts it or suggests, that the victim was not in a position as vulnerable as one normally finds in conventional robbery cases. Accordingly, it is argued, the sentence was manifestly excessive or wrong in principle.

14. It may well be that Mo Kwong Sang was directed at planned or conventional robberies in the sense of those who go out to rob, but to the extent that counsel seeks to say that the facts of this case are somehow less serious than those envisaged by the court in Mo Kwong Sang as meriting a starting point of five years, Mo Kwong Sang does not altogether help him, for the starting point there is higher even than five years when physical violence is used, and higher again if the offence is committed in private premises. Whilst this particular offence was not committed in private premises in the sense in which normal robberies occur, this was not a public place and the victim was a virtual prisoner in the premises.

15. There is, in any event, little to distinguish the gravity of this particular offence from that inherent in a case where people go out to rob. It is said that this robbery was not premeditated in that this particular victim had not earlier been singled out and identified as the target of planned coercion and theft. This was not in that sense a planned robbery. But that said, it is unrealistic to view the conduct of this applicant and his co-defendants as some spur of the moment aberration or lapse. It is self evident from the milieu in which these defendants operated and the manner in which events unfolded, that if this was not part of a scenario with which they were familiar, this was conduct upon which they were quite readily prepared to embark with a vulnerable visitor should he present himself. That aggressiveness of this kind was part of their operating method is evident from the probation officer's report on this applicant. The judge was quite entitled to take the view, as he did, that the setting and sub-culture in which these defendants placed themselves was one in which "stand over tactics on customers", as he put it, was an occupational incident.

16. There were aggravating features in this case which satisfy us that the five years' sentence imposed by the judge was neither manifestly excessive nor wrong in principle. The complainant was a visitor to Hong Kong, and the fact that he was a stranger to these parts was known to the applicant and the other defendants, and deliberately used by them as a weapon of intimidation. Beyond that, he was subjected to prolonged assaults, a knife was flourished, and he was kept prisoner in the shop against his will, and threats were made against him lest he reported the matter, threats which nearly worked.

17. It is said by Mr Macrae on the applicant's behalf today that the complainant himself was aggressive. If that is put forward as mitigation, the answer is that that aggression would not have been occasioned had the defendants not threatened the complainant initially and told him that he was not leaving the premises. Then it is said that he was not a vulnerable victim as perhaps is a woman caught in a lift robbery. We do not agree. A visitor locked in a room and faced by three aggressive men, a visitor unlikely to pursue complaints in response to threats is, in our judgment, eminently vulnerable.

18. In short, this was a nasty incident, and the sentence imposed of five years' imprisonment upon this applicant was, in our judgment, neither manifestly excessive nor wrong in principle.

19. Accordingly, the application for leave to appeal against the sentence imposed in this case is refused.