HKSAR v. Zhang Wei

CACC 95/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 95 OF 2014

(ON APPEAL FROM HCCC NO. 559 OF 2013)

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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicant seeks leave to appeal against the sentence of 8 years’ imprisonment imposed upon him on 11 March 2014 by V. Bokhary J following his committal to the High Court for sentence after his plea of guilty in the Magistracy to a charge of robbery of $790 and a mobile phone from Ms X at premises from which she operated as a prostitute in Tusen Wan on 23 March 2013.

The Facts

2.  As the factual basis of the acceptance of his plea of guilty, the applicant accepted that on the evening of 23 March 2013, whilst he was enjoying the services of Ms X, he confronted her with a syringe with what appeared to contain blood, declaring robbery.  To reinforce his demands he informed her that he had AIDS.  In the course of Ms X’s attempts to escape from him and in the ensuing struggle he stabbed Ms X on the left upper arm with the syringe.  Having entreated him not to stab her again, Ms X led him to a bedroom, where the applicant stole $790 and a mobile telephone valued at $6,000.  After the applicant left the premises, Ms X raised a hue and cry and reported the matter to the police. Medical examination of Ms X revealed the presence of a small needle mark on her left forearm.  A test for HIV proved negative.

3.  On 24 March 2013, the applicant was intercepted by police officers in Chuen Lung Street and found in possession of the mobile telephone stolen from Ms X.  The applicant admitted to the police that he had committed the robbery of Ms X. In a video recorded interview, he asserted that he had stabbed her with a syringe accidentally during the struggle, but denied having told her that he was an HIV carrier.

Reasons for sentence

4.  In her Reasons for Sentence the judge stated that she had taken into account the mitigation advanced on behalf of the applicant.  That mitigation included the fact that the applicant, a man of 35 years of age, had no criminal convictions either in Hong Kong or the Mainland. He was a resident of the latter and a visitor to the former.

5.  The judge described as “extremely serious” the fact that the applicant had “not only threatened the victim with a syringe of what you made her believe was AIDS infected blood, you actually stabbed her in the arm with that syringe.” [1] The judge went on to say that, until the test for HIV proved negative, the applicant “must have undergone the most terrible agony of anxiety”.  Describing the applicant’s conduct as “extremely cruel”, the judge said that kind of behaviour “must be firmly deterred”.

Starting point for sentence

6.  The judge stipulated a starting point for sentence of 12 years’ imprisonment.  In an interchange with counsel for the applicant in the course of mitigation, the judge drew his attention to the judgment of this Court in HKSAR v Cheung Tak Wa & Anor [2], describing the applicant’s conduct as being “even worse”. [3]  The judge observed that, in circumstances where chloroform had been administered in the course of a robbery, a starting point of 12 years’ imprisonment taken by the judge had been reduced on appeal to 10 years’ imprisonment.

Discount

7.  The judge stated that, for the applicant’s plea of guilty, she afforded him a discount of one-third from that taken as a starting point for sentence.

Sentence

8.  In the result, the judge imposed a sentence of 8 years’ imprisonment on the applicant.

Ground of appeal against sentence

9.  On behalf of the applicant, Mr So submitted simply that the sentence of 8 years’ imprisonment imposed on the applicant was manifestly excessive or wrong in principle.  He submitted that in R v Mo Kwong Sang [4] this Court said that a starting point of 7 years’ imprisonment should be adopted for an offence of robbery, where physical violence was used.  He contended that in enhancing that starting point by 5 years’ imprisonment the judge had erred in apparently placing reliance on the judgment of this Court in HKSAR v Cheung Tak Wa & Anor.  He submitted that a starting point of 12 years’ imprisonment for robbery was to be reserved for much more serious circumstances of robbery.  He invited the court to note that in HKSAR v Mang Wai [5], in which the defendant attempted to rob a bank during which he displayed a fake bomb, this Court upheld a sentence of 8 years’ imprisonment imposed after a plea of guilty.

A consideration of the submissions

10.  In the judgment of this Court in Mo Kwong Sang, Roberts CJ said that the suggested starting point for sentence of 7 years’ imprisonment in circumstances of robbery where violence was used “should be increased if there are other aggravating factors”. [6] He went on to give a “non-exhaustive” list of such factors.

11.  There is no dispute that violence was used in the course of the robbery.  We are satisfied that Ms  Parwani, counsel for the respondent, was correct to identify as an aggravating factors in the commission of the robbery the fact that Ms X, a prostitute operating alone and thereby vulnerable, was subjected to the threat not only of immediate physical harm but also put in fear of the transmission of a life-threatening ailment.  Further, as the judge stated she took into account, Ms X was placed under great anxiety for the period of time that elapsed before she was provided with the negative results of the test for HIV.  No date of when Ms X learned of the result of the test was stipulated in the Summary of Facts or otherwise provided to the judge.  As Hartman JA noted in the judgment of this Court in HKSAR v Gurung Laxman [7], in the context of consideration of aggravating factors in the commission of the offence of rape, the fear of what might result in consequence of an attack is a factor in aggravation of the offence: [8]

“ The fear on the part of a victim that she may have been made pregnant or that she may have been afflicted with disease (including the possibly mortal affliction of AIDS) compounds the degradation suffered by the act of rape itself. Until medical tests can be conducted such fears must be capable of creating the most profound anxiety on the part of a victim.”

12.  In HKSAR v Cheung Tak Wa the 1^st applicant had pleaded guilty to stealing chloroform from his employer (Count 1) robbery (Count 2) and administering chloroform with intent to rob (Count 3).  The victim of the latter two counts was a prostitute and the offences committed in sequence at the same place.  As was noted in the judgment of this Court, the facts relevant for sentence were that, in the course of sexual activity with a prostitute at her premises, the applicant: [9]

“ ..produced the chloroform the fumes of which he blew towards her, describing it to her as cough medicine that would make them feel ‘higher’. On the contrary, Ms Cho became dizzy whereupon the applicant sat on her legs and seized hold of her neck. In response to her violent struggling the 1^st applicant poured chloroform from the bottle over her face, declaring robbery. In response to his demands that she give him all her money, Ms Cho gave the 1^st applicant her handbag, inviting him to take the money in the handbag. He did so.

   As the 1^st applicant was dressing himself, Ms Cho seized the opportunity to flee, running from the flat crying out for help.  A female neighbour responded but the 1^st applicant was able to make good his escape.”

13.  It was noted that, in determining the appropriate sentence to be imposed on the 1^st applicant:[10]

“ The judge determined that the use of chloroform in the course of the robbery was a “grossly aggravating factor”, stating that it was clear that if the robbery had gone to plan Ms Cho would have been left unconscious and tied up in her own premises. He endorsed as realistic the acceptance by the 1^st applicant’s counsel that the robbery was “brutal and very nasty”.  Determining that the theft of the chloroform and its subsequent administration “very considerably aggravate the offence of robbery”, the judge stated that he did not propose to make the sentences for those offences consecutive to that imposed in respect of the robbery, rather he stipulated that he enhanced the initial starting point taken for robbery by five years’ imprisonment to a total of 12 years’ imprisonment.  The judge identified starting points of four years’ and six years’ imprisonment in respect of Counts 1 and 4, namely theft and administering chloroform respectively.”

14.  This Court accepted that, having regard to the fact that “the robbery was of a woman, alone in her own premises at night, and that she was subjected to violence that required hospitalisation”, [11] the judge was entitled to take a starting point for the offence of robbery of 7 years’ imprisonment.  Of the judge’s global approach to sentencing for the several offences, this Court said: [12]

“ We accept Mr Lee’s submission that the judge was entitled to reflect the fact that the commission of the offences related to both the robbery (theft and administering chloroform in respect of the 1^st applicant) and the conspiracy to rob charge (theft in respect of the 2^nd applicant) in the overall level of sentence imposed.”

15.  Nevertheless, having regard to the manner in which the applicant in that case had used the chloroform, apparently in the first instance to trick the victim and then to burn her with the chemical, rather than seeking to render her unconscious by applying a chloroform soaked cloth to her mouth, this Court determined that the starting point for the offence of robbery was too high and substituted one of 10 years’ imprisonment.  As a result, the sentence imposed by the judge for the robbery of 8 years’ imprisonment was quashed and one of 6 years and 8 months’ imprisonment imposed in its place.

16.  As is apparent from the judgment in Cheung Tak Wah the factual circumstances and the particular approach taken in sentencing, reflecting multiple offences, are not helpful in determining the appropriate starting point for sentence in the case of this applicant.

17.  We are satisfied that the fact that the applicant stabbed Ms X with the syringe after he had told that he had AIDS was a seriously aggravating factor in the commission of the offence and that the judge was right to describe the robbery as “extremely serious”.  Similarly, she was correct to have regard to the fact that the harm inflicted on Ms X continued after the applicant had decamped, in that her acute anxiety would have lasted until she obtained the negative results for the HIV test.  The mere threat of the use of such a weapon in the course of the robbery would undoubtedly instil terror in any victim and its actual use would cause terror and foreboding at the possible consequences.  The judge was right to say that a deterrent sentence was required.

18.  Notwithstanding those considerations, we are satisfied that the judge erred in stipulating a starting point for sentence of 12 years’ imprisonment.  As Mr So submitted in his succinct address, that was too high.  In our judgment, having regard to all the circumstances of this case, the appropriate starting point was 9 years’ imprisonment.

Conclusion

19.  Accordingly, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, quash the sentence of 8 years’ imprisonment imposed on the applicant and, in its place, substitute a sentence of 6 years’ imprisonment.  

(Michael Lunn) VICE-PRESIDENT

(IAN MCWALTERS) JUSTICE OF APPEAL

[1] Appeal Bundle, page 5 L-M.

[2] HKSAR v HKSAR v Cheung Tak Wa & Anor [2011] 2 HKLRD 923.

[3] Appeal Bundle, page 3 R-S.

[4] R v Mo Kwong Sang [1981] HKLR 610.

[5] HKSAR v Mang Wai (CACC 4/2007; unreported, 23 May 2007) .

[6] R v Mo Kwong Sang, page 611 G-H.

[7] HKSAR v Gurung Laxman (CACC 254/2011; unreported, 4 May 2012) .

[8] HKSAR v Gurung Laxman; page 4 Q-T, paragraph 16.

[9] HKSAR v HKSAR v Cheung Tak Wa & Anor; page 927, paragraphs 6-7.

[10] HKSAR v HKSAR v Cheung Tak Wa & Anor; page 928, paragraph 11.

[11] HKSAR v HKSAR v Cheung Tak Wa & Anor; page 933, paragraph 30.

[12] HKSAR v HKSAR v Cheung Tak Wa & Anor; page 933, paragraph 33.