HKSAR v. YANG MING

CACC 384/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 384 OF 2004

(ON APPEAL FROM HCCC No. 103 of 2003)

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J U D G M E N T

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Lugar-Mawson J. (giving the judgment of the Court):

Background

1.  On 13 August 2004, the Applicant, Yang Ming pleaded not guilty before Deputy High Court Judge Wright in the Court of First Instance to a count of robbery, but guilty to an alternative count of aggravated burglary contained on the indictment laid against him.  The Judge sentenced him to 4 years’ and 8 months’ imprisonment for this offence and ordered that he serve 3 years and 8 months of that sentence consecutively to consecutive sentences totaling 4 years’ and 4 months’ imprisonment which he was serving in respect of an offence of robbery and an offence of unlawful remaining, for which he was sentenced in the District Court on 24 June 2002.

2.  On 5 November 2004, the single judge refused the Applicant leave to appeal against sentence.  Today, he renews his application before the full bench.  He is unrepresented.

Facts

3.  The Applicant, a Mainlander and an unauthorised entrant, was one of two men who broke into residential premises in Sheung Shui at 5:30 a.m. on 20 August 2001.  Their entry woke the householder, who confronted them as they were leaving the premises.  One of them, the Applicant says that it was not he, took out a knife with 6-inch long blade and attacked him with it.  The two intruders escaped through a broken window, taking a discman, a mobile phone and an electronic dictionary with them.  The householder was cut and injured on his head and face.  He was treated in hospital for his injuries.

4.  Later the police collected blood samples from within the premises.  When checked against police records, the DNA in those samples matched the DNA of the Applicant, who was then in custody awaiting trial in respect of a robbery committed on 28 January 2002. When confronted with the case against him the Applicant agreed to be interviewed under caution in a video recorded interview.  In the interview he admitted his part in the present offence.  He said that he had cut his arm on broken glass from the window when escaping from the premises.

5.  The brief facts of the robbery committed on 28 January 2002, were that the Applicant was one of six or seven men who on that day, in Nathan Road, Tsim Sha Tsui, robbed a businessman of a quantity of watches he was carrying.  After snatching the watches the robbers fled the scene.  Passers by gave chase and the Applicant was arrested soon after.  The businessman identified him as one of the group of men who had just robbed him.  The Applicant pleaded guilty to that offence in the District Court on 24 June 2002 and was sentenced to 32 months imprisonment.  He also pleaded guilty to an unlawful remaining offence, for which he was sentenced to a consecutive term of 20 months’ imprisonment.  

6.  Although the prosecution became aware of the Applicant’s involvement in the present offence whilst he was in custody awaiting trial for the January 2002 robbery and unlawful remaining offences there were two good reasons why the two cases could not be consolidated for trial in the Court of First Instance.  The first is that the offence of unlawful remaining, created by section 38(1)(b) of the Immigration Ordinance, Cap 115, is a summary offence only and the Court of First instance has no jurisdiction to try summary offences, whereas the District Court has.  The facts of the present offence were so serious that they called for trial in the Court of First Instance, which precluded the prosecution from consolidating the trial of all three offences in the District Court.  The second reason is that by charging the January 2002 robbery in the same indictment as the August 2001 aggravated burglary the prosecution may have breached Rule 7 of the Indictment Rules.  This rule provides that charges may only be joined in the same indictment if they are founded on the same facts, or form or are part of a series of offences of the same or a similar character.  It could have been persuasively argued that there was no sufficient nexus between the two offences to fulfill the requirements of this rule.

7.  The Applicant has a criminal record in Hong Kong.  Starting from February 1995, in addition to the robbery and unlawful remaining convictions in the District Court case just referred to, he has two previous convictions for burglary, one for theft and three for unlawful remaining.  He claims to be 30 years old. 

Sentencing

8.  In the present case, the Judge took a starting point of 7 years.  Quite rightly he regarded the fact that the Applicant had a criminal record for burglary and robbery as an aggravating factor.  He gave the Applicant a one-third discount to reflect his guilty plea.  The Judge found no other mitigating factors in the case and sentenced the Applicant to 4 years’ and 8 months’ imprisonment. 

9.  The Judge then considered the effect of the District Court sentences.  He expressed the view that had the two cases been heard together, the appropriate aggregate starting point sentence for all offences would have been 12 years’ imprisonment.  He applied a one-third discount to that to reflect Applicant’s consistent guilty pleas, producing an overall effective sentence of 8 years' imprisonment.  To effect that sentence, the Judge ordered that the Applicant serve 3 years and 8 months of the sentence for the present case consecutively to his earlier sentences.

Grounds of Appeal

10.  In his self-made grounds of appeal, the Applicant, who claims to have been converted to the Buddhist faith whilst in prison, asks why he was not dealt with for his two offences at the same time.  He also says that he considers his 4 years and 8 months sentence “rather excessive”.  Essentially, he repeats these matters before us today.

Discussion

11.  We have already explained the cogent reasons why the Applicant was not dealt with for all his offences at the same time.

12.  There is no doubt that aggravated burglary is a serious offence.  The maximum penalty is life imprisonment, as it is for robbery.  The Applicant and his accomplice broke into private residential premises carrying a weapon of offence with them and stole from within them.  When they were discovered they used that weapon and deliberately injured the householder with it.  The only reason why the Applicant did not face a count of robbery was because his accomplice and he resorted to force after stealing the property, not before.  The householder confronted them while they were leaving the premises.  Despite this technical distinction there can be no doubt that from the householder’s point of view (and indeed the public’s point of view) there is very little, if any, distinction between the two offences.  We are of the view that a starting point sentence of 7 years’ imprisonment was appropriate for this offence.  The one-third discount was in accordance with established sentencing principle.  We agree with the Judge that there were no other mitigating factors

13.  As for totality, we see from his sentencing remarks that the Judge considered this very carefully.  He was aware of the extent and nature of the Applicant’s criminal record.  He was at pains to ensure that the Applicant’s overall period of imprisonment for his two separate sets of offences was appropriate and not excessive.  He took pains to ensure that the Applicant’s sentences reflected the position as it would have been had it been possible to consolidate all his three offences and try them on the same indictment.  We believe that he was correct in the approach he took, and that a starting point sentence of 12 years for all offences is right, as is the ensuing total period of 8 years’ imprisonment after giving credit for the Applicant’s guilty pleas.

Decision

14.  The application is dismissed.

Loss of time

15.  This is an application that is entirely without merit, bordering on the impertinent, and the Applicant comes to this court after the single judge refused him leave to appeal.  For these reasons we shall exercise our powers under section 83W of the Criminal Procedure Ordinance to direct what is commonly known as ‘loss of time served’.  The notice of application in this case is dated 26 August 2004, but until 18 December 2004 the Applicant was still serving the sentence imposed in the District Court.  It follows that the order we make could not run before that latter date.  We order, however, that the Applicant’s time in custody since 18 December 2004 until today shall not be reckoned as part of the sentence to which he is for the time being subject.