HKSAR v. CHOI HUNG

CACC 225/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 225 OF 2010

(On Appeal From High Court Criminal Case No. 148 of 2010)

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BETWEEN

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

1.  The applicant who was the 2^nd defendant in the trial below, pleaded guilty before the Magistrate Court to two charges of robbery. He was committed to the High Court for sentence. Mackintosh J imposed a total sentence of five years and six months’ imprisonment against him for the two charges. The applicant now applies for leave to appeal against sentence.

Facts

2.  The facts showed that in the afternoon of 9 August 2009 the applicant together with the 1^st defendant attacked a couple walking along the reservoir path in Braemar Hill.  The applicant and the 1^st defendant who were hiding in the bushes, came out when the couple arrived at their spot.  The applicant first pulled the male and when the female intervened using her hiking stick, the applicant pulled both of them into the bushes.  The 1^st defendant then appeared, brandishing a knife and the two victims were taken further into the bushes and away from the safety of the path.  The 1^st defendant pressed the knife against the male’s back and warned him not to look back.  The victims were ordered to surrender their belongings which they did.  The value of the victim’s cash, a mobile phone and an ATM card amounted to $2,800. 

3.  Two months later the applicant and the 1^st defendant repeated the same offence at the same spot.  At that time a 62-year-old man and his young grandson were walking along the path when they were suddenly confronted by the applicant and the 1^st defendant.  The 1^st defendant was brandishing a knife and the applicant was holding a broken glass bottle.  The 1^st defendant and the applicant claimed that they were from the Mainland and they intended to rob the victims.  They threatened them with the weapons which were held close to their bodies.  The victims were escorted off from the path into nearby bushes.  The grandfather surrendered some money, his mobile phone and a watch at a total value of $2,000.  

4.  The 1^st defendant was also charged with an additional offence of going equipped for stealing.  This offence came to light after the Police set up an ambush in the area in response to reports of robbery.  The Police found the 1^st defendant and the applicant loitering in the undergrowth and the 1^st defendant was seen possessing a knife.  The Police managed to catch the 1^st defendant and recovered the knife but the applicant managed to escape and was only arrested two days later.  He was found to be in possession of the phone which had been stolen from the couple of walkers.  

The sentence

5.  In respect of the first robbery the Judge adopted a starting point of five years’ imprisonment, reduced it by one third to arrive at a three years and four months’ imprisonment.  He adopted the same starting point and deduction for the second robbery.  He ordered two years and two months’ imprisonment of the second sentence to run consecutively to the first sentence, making a total of five years and six months’ imprisonment.  

The applicant’s case

6.  The applicant was 58 years of age at the time of the offence.  He claimed that he played a minor role in the two robberies.  He did not hold any weapon and he did not take part in hurting the victims.  He claimed that in both cases he was taking dangerous drugs at the hillside and came across the 1^st defendant and got involved with the offence.  He further claimed that the 1^st defendant faced three charges and yet received the same sentence as him who only faced two charges. In respect of the additional charge faced by the 1^st defendant, the Judge ordered a six months’ imprisonment which is to run concurrently to the five years and six months’ imprisonment received by the 1^st defendant in respect of the two robbery charges.

Our view

7.  In Mo Kwong Sang v. R. [1981] HKLR 610 this Court held that the appropriate sentence in an ordinary case of armed robbery where an accused carried a knife or dangerous weapon which he displayed to his victim is five years’ imprisonment.  If physical violence is used, a sentence of seven years’ imprisonment should be considered.  If other aggravating factors are present such as multiplicity of offences of a similar nature or more than one person taking part in the robbery the sentence should be increased.

8.  In this case weapons were displayed in both robberies.  Physical violence was used in the first robbery.  Aggravating factors such as the robberies being committed by two men and a young victim was involved in the second robbery were present in this case.  The Judge was clearly right when he held that the use of weapons was contemplated by both the applicant and the 1^st defendant as part of their joint enterprise and they bear equal responsibility for their use on each occasion. 

9.  The Judge was lenient when he used a starting point of five years’ imprisonment.  It could be much higher in the light of the aggravating factors.  However, bearing in mind the principle of totality, we agree that a total sentence of 5 years and 6 months’ imprisonment which is based on a notional starting point of 8 years and 3 months is correct.  In the circumstances we do not see the need to interfere with the individual sentences.  The fact that the 1^st defendant received a totality no more than the applicant does not in the circumstances of this case give rise, in our judgment, to a justifiable sense of grievance.  In the circumstances the application is dismissed.