HKSAR v. CHAN HUNG KIT

CACC 572/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 572 OF 2001

(ON APPEAL FROM HCCC 364 OF 2001)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 7 December 2001, the Applicant, aged 44, appeared before Deputy Judge Barnes in the Court of First Instance where he confirmed the pleas of guilty which he had entered in the Magistrates' Court to nine counts of robbery. The judge imposed a total sentence of twelve years' imprisonment against which he now seeks leave to appeal.

Facts

2. The Applicant always targeted females as his victims in this series of offences committed between 24 April and 31 May 2001. In every case, his victims worked in boutique-type shops. In seven of the robberies, his victims were working alone but in the other two, the shops were being staffed by two women when he embarked on his criminal conduct. In every case he was armed, usually with a knife or a cutter which he displayed. The majority of the robberies occurred during the evening.

3. Counts 5, 7 and 8 were slightly more serious robberies than the others because, in each case, the victims had their hands tied up. The victims in counts 5 and 8 also had their heads covered with cloth. The robbery in count 7 was unique in that it involved the Applicant and a second man who together robbed two victims in a boutique with a cutter and, apart from tying up their hands, they also gagged and blindfolded them. One of the victims was then forced to provide her bank PIN number.

Criminal record

4. The Applicant has an appalling criminal record. In 1985, he appeared in the District Court and received three and a half years' imprisonment for five robberies. Later in the same year, for six further robberies, he received a concurrent sentence of eight years' imprisonment in the High Court. Following his release from those sentences, the Applicant was sentenced, on 16 August 1993, to a combined total of twelve years' imprisonment for six robberies and two indecent assaults. The present robberies were committed soon after his release from that sentence when, as the Applicant has said in court today, he was very short of money.

Sentence

5. The judge indicated that she would adopt a five-year starting point for the majority of the robberies where a knife or similar object was displayed to the victims, but for count 7, she adopted an eight-year starting point and it appears that on count 5 a starting point of six years was adopted. In totality, the judge considered that in the light of all the circumstances a starting point of eighteen years was appropriate. She then, reflecting the Applicant's pleas of guilty, reduced this to an overall term of twelve years' imprisonment by making the sentences of four and five years' imprisonment respectively on counts 5 and 7 consecutive to each other and consecutive also to the remaining concurrent sentences of three years' imprisonment imposed on all the other counts.

The application

6. The Applicant filed an application for leave to appeal on the ground that his sentence was too severe. In court today, he has added nothing of substance to this ground although he referred to having read about lower sentences imposed on other robbers for what appeared to him to be more serious offences than anything committed by him in the present series. Of course, each case has to be decided on its own facts and here, in the present case, a lengthy series of robberies was committed by a man who has made it abundantly clear that he is not deterred by long sentences for robbery.

7. We are indebted to Mr William Tam, who appeared on behalf of the Respondent, for the care with which he has addressed this case in his written argument. In particular, he analysed a number of other cases in which there were multiple robbery counts, comparable to the present case, which involved the imposition of less heavy sentences than the Applicant has received. This was done in a refreshingly open spirit of fairness towards an unrepresented applicant. Mr Tam balanced this argument by a submission of overwhelming persuasiveness to the effect that the features of the present robberies, coupled with the Applicant's persistence as a robber (see HKSAR v Chan Pui-chi [1999] 2 HKLRD 830), made the twelve-year term of imprisonment such that it was not open to justified criticism.

Conclusion

8. The application is dismissed.