HKSAR v. YAN WAI MING

CACC 417/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 417 OF 2002

(ON APPEAL FROM HCCC 200/2002)

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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):

1. On 31 July 2002, the Applicant, aged 30, pleaded guilty in the Court of First Instance to two counts of robbery (Counts 1 and 3) and one count of theft (Count 2). Mr Recorder Ching Y Wong, SC, sentenced the Applicant on the same day to a total of 8 years' imprisonment against which the Applicant now seeks leave to appeal.

2. We do not need to rehearse the facts in any depth in the light of the grounds of appeal which complain, firstly, that the Recorder's starting point for the robbery in Count 1 was too high bearing in mind the guidelines in Mo Kwong-sang v R [1981] HKLR 610 and secondly, that insufficient regard was paid to the Applicant's clear record and age.

3. The robbery in Count 1 was committed by the Applicant at a time when he was pretending to be a patient at an acupuncture clinic. After he had been given treatment, he produced a paper cutter, 12 cms in length, and robbed the two members of the staff of their wallets. Both of them had bank cards in their wallets and they were forced to disclose their PIN numbers before the Applicant fled with their property. The victims were also left tied and gagged. Within about an hour, the Applicant withdrew HK$10,000 on one of the credit cards. This gave rise to the theft charge.

4. The robbery in Count 3 occurred on 21 February 2002, just under 3 months after the commission of the other offences. Again, the Applicant was pretending to be a genuine patient at a clinic, this time a dentist's surgery. The method used was very similar to that adopted in the earlier robbery. However, the Applicant's plan went wrong when one of the victims managed to activate a burglar alarm. The Applicant was quickly caught by police on the street outside.

5. In passing sentence, the Recorder said:

"On each occasion you were armed with a weapon which you used to threaten the victims. You also used violence on them, and for one robbery, you not only tied your victims up, but also gagged them.

These robberies were not committed because of a momentary loss of self-control; they were premeditated in that, on both occasions, you posed as a patient of the targeted clinic and invaded those private premises. On each occasion it is clear that you took from your victims everything that could be taken. Further, on one occasion, you forced them to disclose their personal identification number for their ATM cards, which you then used to commit a further offence of theft. All these are aggravating factors." (Appeal bundle p.5)

6. The Recorder later continued by taking starting points on the three counts respectively of 8 years, 18 months and 7 years' imprisonment and he discounted each by a third in the light of the Applicant's pleas of guilty.

7. The Applicant ultimately received 5 years and 4 months on Count 1 and a concurrent sentence of 12 months' imprisonment on Count 2. The sentence of 4 years and 8 months on Count 3 was ordered, taking totality into account, to run consecutively to the extent of 2 years and 8 months, leaving an overall sentence of 8 years' imprisonment.

8. The first ground of appeal which Mr Osmond Lam, on the Applicant's behalf, has very ably raised in the course of argument is that an 8-year starting point under the Mo Kwong-sang (above) guidelines was manifestly excessive. He pointed to the judgment in that case when submitting that a 7-year starting point was appropriate. The passage in the judgment which he relied upon for this proposition is at p. 611E. This reads:

"We suggest that, in future, 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.

These guidelines are intended to apply to those who are convicted after a trial."

9. Mr Lam submitted that there were no other factors which would justify the Recorder taking a starting point for sentence higher than 7 years. In saying this, he pointed out also that the starting point for "head-bashing" robberies, which by their very nature are serious because of the potential injury to the victims of such robberies, is "not less than 8 years" under the guidelines set out in Secretary for Justice v Ma Ping-wah [2000] 2 HKC 566.

10. Mr Jackson Poon, for the Respondent, whose written argument he adopted, pointed out that where the circumstances of a robbery with a weapon (other than a firearm) reveal that bank cards are taken and are subsequently used, this can be regarded as an aggravating factor. (See: R v Sun Sheung-chung CACC 152/1993 (unreported)). In that case, the sentencing judge had taken a 9-year starting point for robbery. Bokhary JA (as he then was) said in the course of giving judgment:

"There was, as we have noted, the taking from the victim of her bank cash withdrawal card. Where bank account-operating material is extracted along with other property, then this is the position. First, the potential for loss of the victim is increased, possibly very considerably. Secondly, the potential for gain to the criminal is correspondingly increased. Thirdly, the sense of violation suffered by the victim is, it is not difficult to imagine, heightened. And, fourthly, the period and scope of the criminal activity involved is extended.

This "bank account" feature, as we will term it, is appearing with mounting and alarming frequency in robbery offences against householders and others. The time has come to warn malefactors - and this warning will become more and more firm as time passes if this sort of thing continues unabated. Such a feature is a considerable element of aggravation; and it will attract additional punishment as a result."

11. It is plain, in the light of what was said in that case, which has as much relevance today as it did in 1993, that the Applicant's first ground must fail. Either the judge could have passed a sentence on Count 1 using a 7-year starting point and made the sentence on Count 2 (the theft) consecutive or he could adopt the method which he chose in this case of using the theft, amongst other features, as an aggravating factor on the robbery count, and passing a concurrent sentence for theft.

12. The second ground of appeal is wholly without merit. It alleged that the Recorder was wrong not to have given a discount in relation to the Applicant's clear record. This has not been a valid ground of appeal for a considerable time. In the days before the discount of one-third on timely pleas of guilty became standard practice, previous good character used to be one of many factors which judges would take into account in deciding what discount to give on a plea of guilty. The one-third discount is usually, as we have said on numerous occasions, to be taken as the high watermark of the discount unless there are very special factors to be taken into account.

13. In the present case, it is not suggested that the Applicant had what is frequently termed "positive good character" in the sense, for example, that he had made himself useful to society by giving his time to unpaid charitable causes. All that is said is that he had not previously acquired a criminal record. The Recorder was aware of this when he passed sentence.

14. The application is dismissed.