HKSAR v. NG CHI MAN

1998 No. CACC 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 465 OF 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced three robbery charges. The first alleged that on the 28th February 1998 inside a lift of Block W, 425 Queen's Road West, he robbed So Shuk-chu of $70.00 cash, two gold rings and robbed Ko Wing-on of HK$200.00 cash and one gold finger ring set with a piece of jade. The 2nd offence occurred some months later. The allegation being that again in Block W, 425 Queen's Road West, he robbed Yuen Ngan-siu of HK$360.00 cash and a ring set with jade, that was on the 27th May. Two days later, at the same spot, he robbed Tsang Wah-chun of HK$220.00 in cash and a gold necklace. He was sentenced to an overall sentence of 6 years and 4 months and he now seeks leave to appeal against that sentence.

2. The facts reveal that in the first offence, which occurred on 28th February 1998, the applicant followed the two victims, entered a lift and, after another person who had been in the lift had left, he declared robbery. The two victims handed him the cash and rings. In the 2nd charge, the modus operandi was much the same. When the lift stopped on the 5/F, the applicant demanded money from the victim, she was then threatened, she gave him money and he also took her gold ring.

3. The 3rd charge is again much the same. The applicant, when the lift reached to 13/F, pressed the button so the lift returned to 10/F with the victim in it, he then demanded money, snatched her wallet and her necklace. He was apprehended some 5 days later in the vicinity and after apprehension admitted that he had been the perpetrator of all 3 offences.

4. The trial judge when sentencing said there is no suggestion the applicant was armed during any of the incidents and that the victims, all female, suffered no physical injury but added that "it was a very shocking experience for them and one which will live in their memories for a very long time." He said that the "recommended sentence for robbery in residential premises is 5 years' imprisonment after trial, increasing where there are other aggravating features. Each of these robberies is deserving of a starting point of 5 years. However, I am mindful of the totality principle of sentencing and the limit of my sentencing jurisdiction being 7 years' imprisonment."

5. He went on to say the "defendant has one of the most appalling records for robbery that I have had the misfortune of seeing. Of 11 previous convictions, 7 are for robberies and each of these were for multiple robberies." He then, detailed the range of sentences of the applicant had received.

6. He went on to say: "he is now 47 years old, and it is quite obvious that he has spent a substantial part of his life imprisoned. One is inclined to the view that he may be partly motivated in committing these offences with a view, ultimately, to being caught and returned to prison for a long time.

7. In the present case, he is convicted purely upon his own admissions to the police. Be that as it may, there would seem no other way of protecting the public from his activities than by ensuring that he does not have access to the public. Regrettably, the only option is imprisonment. He has pleaded guilty and is therefore deserving of the normal discount of one third of the starting point. I can find no other mitigation of weight, although I feel it proper to add that his counsel has said all that could be said for him in these circumstances."

8. He then sentenced him to 3 years and 4 months' imprisonment on the 1st charge and "taking into account the totality principle" to 18 months imprisonment on each of the other two charges, ordering that those sentences be consecutive to the sentence on the 1st charge making a total of 6 years and 4 months.

9. Before we embark upon consideration of this matter we think it appropriate to say that, in our view, the better approach to sentence in a case like this is to assess an overall starting point, and having done so to give credit to any matters which could properly reduce that starting point.

10. The applicant today is represented by Miss Shui who, in her grounds of appeal, firstly submits that the sentences were arrived at by use of an erroneous approach. As we indicated to her at the outset, we think a better, but not necessarily the only approach is the one indicated above. It certainly is the one which most assists the Court of Appeal when dealing with an appeal against sentence.

11. In the present case we do not know the overall starting point which the judge would have thought appropriate but, as been pointed out by Mr. Schapel, given that a one-third discount was given for plea, the overall starting point must have been 9 years and 6 months.

12. The second submission is that a 5 year starting point was too high for a lift robbery. Miss Shui did not, however, in the course of argument, really pursue this submission.

13. It is suggested thirdly that inadequate consideration was given to totality. Given that the starting point was 9 years and 6 months and that each offence could properly have attracted a sentence of 5 years a scaled down totality of 9 years and 6 months cannot really be criticised.

14. The suggestion then is the applicant did not receive any discount for his immediate admission that he had committed all of the offences, and that had he not done, his involvement might never have been known. It should be borne in mind when considering this submission that he may well have anticipated that at least 2 of the victims would have been able to identify him as he was arrested only days after those offences. In the outcome, of course, they were not able to do so and he was indeed convicted solely upon his own admissions. We will turn later to consider whether any proper discount was given in this regard.

15. The next submission suggests that the Judge was influenced by his perception that the applicant wanted to return to prison for a long time. We reject that submission. We do not consider that it is in any way sustainable.

16. Looking at the matter in the round, we are satisfied that although 4 years would be a proper starting point for a single offence of this nature, that starting point can, in the present case, be enhanced because this applicant was a persistent lift robber. It is admitted that all of his offences were robberies of that kind.

17. We wish to make it plain when so saying that he is not receiving an enhanced sentence because of his record. He is being sentenced because the present offences have circumstances of aggravation which arise because they are committed by a determined offender experienced in this kind of offence. That, in itself, is properly a circumstance aggravation.

18. A discount for plea will, as we have said, bring the starting point of 9 years and 6 months down to one of the 6 years and 4 months which was the overall sentence that the Judge imposed. No credit has, however, in such a calculation been given to the applicant for his admissions. We are satisfied that he was entitled to credit for those. In all the circumstances, the overall sentence which we think appropriate is one of 5 years and 9 months. The application is allowed and the sentences are reduced to 5 years and 9 months on each count and the sentences are ordered to be served concurrently.