HKSAR v. KWOK TUNG AND ANOTHER

CACC 550 & 551/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS. 550 & 551 OF 2003

(ON APPEAL FROM HCCC 137 & 136 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. Although the subject of separate applications in this court and separate indictments in the court below, the applicants were in fact charged with precisely the same offence of robbery which they were alleged to have committed jointly on 17 January 2003, at Room 1604 on the 16th floor of Honour Industrial Centre, No. 6 Sun Yip Street, Chai Wan. Yau Kit-ching (the victim) was robbed of four credit cards, an ATM card, a clinic card and an Octopus card, as well as her mobile telephone, minidisc walkman and $77.50.

2. On 16 May 2003, Kwok Tung (D1) pleaded guilty to the charge in the Magistracy. On 8 December 2003, he confirmed his guilty plea and admitted the summary of facts before Beeson J (HCCC 137/2003).

3. Kan Chi-keung (D2) pleaded guilty to the charge on the first day fixed for his trial, 4 December 2003, and also admitted the summary of facts on 8 December 2003 (HCCC 136/2003).

4. On 8 December 2003, Beeson J sentenced D1 to six years' imprisonment and D2 to six and a half years' imprisonment. They now seek leave to appeal against their sentences.

The facts

5. At about 8 pm on 17 January 2003, the 31-year-old female victim was closing up her office in the industrial building identified in the charge. A man pushed her back inside. When she complied with the man's request to switch the lights back on, she found that another man had also got into the office. At that moment, the victim's mobile telephone rang. Secretly, she pressed the answer button and shouted for help. This alerted the caller, her boyfriend, to the fact that something was wrong and, very sensibly, he made a report to the police.

6. Meanwhile, one of the men snatched the victim's telephone while the other pressed her head down onto the ground. One of them told the victim to be co-operative and said that they just wanted money. The victim noticed that one of the males was holding a knife which she thought was about six inches long. She was pushed into a storeroom where her hands were tied with wire. Her head was covered by a T-shirt and her watch and rucksack were taken away. One of the men asked her for the PIN numbers of the bank and credit cards in her wallet. She was told that if she did not co-operate she would be stabbed twice. She provided the number for one of her cards. Her eyes and mouth were then covered with adhesive tape.

7. At about this time, the police arrived. When they rang the doorbell, the applicants fled. In order to get away, they opened a window and climbed down the sixteen floors to the ground where the police caught them.

8. The property set out in the charge was found in D1's possession together with a knife measuring ten inches in length. D1 also had a knife sheath attached to each of his calves. It is accepted that the applicants were carrying two knives but the second of these has never been recovered. Under caution, both applicants admitted their involvement in the offence.

Antecedents and mitigation

9. Each of the applicants has a bad criminal record.

10. D1, aged 40, has been before the courts on three occasions. The second of these appearances concerned three cases of robbery and one other offence for which he received a total sentence of four years' imprisonment.

11. D2, aged 46, has seven previous convictions which includes a sentence of seven years' imprisonment for robbery.

12. In mitigation, it was submitted on D1's behalf that since his release from prison in 1998, he had tried to turn over a new leaf. He committed the present offence, it was said, because he did not have enough money to pay for his wife's medical expenses following an injury she had suffered in a traffic accident.

13. Similarly, on D2's behalf, it was pointed out that since his release in 1998, he had not re-offended.

14. It was emphasised by counsel for the applicants in the court below that they had each pleaded guilty to the charge and that all the stolen property had been recovered. The judge was reminded that apart from a small cut and the emotional trauma of the event, the victim had not suffered serious injury.

Sentence

15. The judge described the offence as a serious one although she accepted that it was not the worst of its type. She then highlighted the aggravating factors in the case, namely, that it had been a planned robbery on a single female victim by more than one robber inside commercial premises. The judge rightly commented that physical violence had been used on the victim and that threats of further violence had been made to the victim if she did not co-operate.

16. The victim had, of course, been tied, gagged, blindfolded and a large knife had openly been carried to threaten her.

17. Lastly, the judge said that a significant quantity of property had been stolen and that there had been an obvious intention on the part of the robbers to withdraw money from the victim's bank account.

18. In view of the guidelines in Mo Kwong-sang v R [1981] HKLR 610, the judge took a starting point of nine years' imprisonment. She gave a full one-third discount to D1. However, in regard to D2, the judge took into account his relatively late plea, only reducing his sentence to six and a half years' imprisonment.

The application

19. Mr Christopher Coghlan, on the applicants' behalf, in a most realistic and able submission, concentrated this application on a single ground, namely, that the sentences were manifestly excessive. He accepted the distinction drawn between the applicants as to their sentences in that not only did D2 leave his plea of guilty until the first day set down for trial, but, more significantly, his plea was entered only after the police had carried out investigations into his alibi notice.

20. Mr Coghlan placed considerable emphasis on the recovery of all the goods stolen from the victim as a factor which he submitted reduced the gravity of the offence. He also took us to a number of previous decisions of this court in comparable cases of robbery, seeking to show that the sentences imposed in this case were relatively high.

21. The guideline sentencing tariffs for an offence of the present kind were laid down in Mo Kwong-sang at 611 where Roberts CJ said:

".... the appropriate sentence 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.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims, ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind."

Roberts CJ went on later in the judgment to say that if the guidelines had been applied to the appellant in that case, who we note was treated as a person of pervious good character, he would have received a sentence of seven to eight years.

22. In addition to these factors, Miss Denise Chan, on the respondent's behalf, in her most helpful analysis of the sentencing policy relevant to this case, pointed out that where credit card PIN numbers are extracted from victims by threats or by force, this court has indicated that this will add to the gravity of the offences (see: R v Sun Sheung-chung, CACC 152/1993 and HKSAR v Kwong Chi-ming, CACC 62/1999).

23. We were not greatly assisted by the comparisons made with the other cases of robbery to which Mr Coghlan drew to our attention. Inevitably, each case will need to be decided on its own merits.

24. Aside from their pleas of guilty, there was little to be said for either of these applicants who were each well versed in the likely consequences of a crime of this gravity in the event that they were caught. In this context, although neither counsel referred to HKSAR v Chan Pui-chi [1999] 3 HKC 848 in terms, it is worth repeating what is set out in the headnote to that case which concerned trafficking in dangerous drugs. This reads:

"(3) While a defendant should not be sentenced for previous offences, the repetition of the applicant's trafficking increased the gravity of these offences as far as sentence was concerned. The offence of drug trafficking was not an exception to the general rule that re-offending in the same way might aggravate the offence as far as sentencing was concerned. Thus a starting point which would have been adopted for a person of good character might have to be increased for sentencing a persistent offender in view of the aggravating features of persistence, the failure of previous sentences to deter and the court's duty to protect the public."

25. The sentences the applicants received were no doubt at the high end of the scale but, in our opinion, they were within the permissible range having regard to all the aggravating circumstances which accompanied this offence.

Conclusion

26. These applications are dismissed.