HKSAR v. SO KONG PING

CACC 492/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 492 OF 2001

(ON APPEAL FROM HCCC 24 OF 2001)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted of six counts of robbery and one count of assault with intent to rob after a trial in the High Court before Nguyen J and a jury. He was sentenced to a total of ten years' imprisonment.

2. He now seeks leave to appeal against the sentences which were imposed.

3. All of the offences were committed within a short span of time. That is between 8 and 29 October 2000. They all occurred in the Tai Po area.

4. In all but one of the offences the modus operandi was of a similar nature.

5. The applicant would approach the intended victim and request them to allow him to use their mobile telephones.

6. When this request was refused he would then produce a short red coloured knife and threaten the victim with it. He would demand money as well as the telephone.

7. All of this was done in public areas during the course of the evening.

8. The main exception to this type of approach occurred in relation to the first count.

9. In that case the victim was a lady. She was returning home at 8.35 in the evening. On leaving the Kwong Yau Bus Terminal the applicant put his arm around her neck and produced the red knife which has been referred to. He grabbed her handbag and ran off. She pursued him shouting that she had been robbed. He dropped her bag and she was able to retrieve it. She continued chasing him and he succeeded in waving down a taxi and boarding it. She went up to the taxi and asked the driver not to drive away as the man in his taxi had just robbed her.

10. The driver attempted to communicate with his control centre and the applicant jumped out of the taxi and the lady was unable to successfully pursue him.

11. So far as the fourth count was concerned, that is the assault with intent to rob, the main aspect of the incident differentiating it from the other offences was that when money was demanded of the victim he refused to pay any. The applicant subsequently left without having achieved what he had intended to do.

12. The applicant was arrested on 30 October. This was one day after the last robbery charged. The victim of that robbery recognized the man in the street who had robbed him and apprehended him. He called the police who then came and arrested him.

13. The way that the Judge passed sentence was to pass a sentence of five years' imprisonment on the first count and then pass similar partially concurrent sentences on the remaining counts. He ordered that twenty months of the sentence on count 2 be consecutive and likewise for counts 3 and 4 and for counts 5, 6 and 7. This was to take cognizance of the totality principle.

14. This being the case the sentences for the subsequent offences were divided up into three groups each of which added twenty months to the sentence to be served thus bringing about a total of ten years' imprisonment.

15. Subject to the observations we will be making concerning the first count, there can be no criticism of the starting point of five years' imprisonment for a robbery where a knife is used.

16. The only question which arises is whether having regard to the totality principle the final sentence of ten years' imprisonment was manifestly excessive.

17. In this connection it needs to be borne in mind that all of these offences occurred over a very short period of time. It would have been a very frightening experience for all of the victims concerned. Undoubtedly the public has to be protected from offences of this nature.

18. When Ms Panesar who represented the applicant at his trial was addressing the Judge on mitigation, she made much of the fact that the applicant appeared to have suffered some brain damage consequential upon his drug abuse habits. It remains however a fact that there was no dispute that he was fit to plead and that he was fully aware of what he had done.

19. The Judge had been informed that the applicant had attempted to commit suicide but that his efforts had been foiled by the diligence of the staff in the Correctional Services Department. A psychiatric report was obtained which we have now seen. It does not add anything which is of great significance so far as this sentencing exercise is concerned.

20. We consider that the sentence imposed on the first count was insufficient having regard to the violence which was inflicted upon the lady victim. However the overall sentence which was passed was manifestly excessive in all the circumstances. We consider that a total of eight years' imprisonment would have been sufficient.

21. We propose allowing this application and treating it as the appeal we order that the sentence on the first count be varied to a sentence of six years' imprisonment. Sentences of five years' imprisonment be imposed on all of the other counts.

22. These will be served concurrently save that two years of each of the sentences will be served consecutive to the sentence on the first count. This achieves a total sentence of eight years' imprisonment. To this extent the appeal is successful.