HKSAR v. Andrianiaina Adrien Luck Yu Pau

CACC 129/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 129 OF 2016

(ON APPEAL FROM DCCC 104 OF 2016)

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REASONS FOR JUDGMENT

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1.The applicant appeared in the District Court before Deputy District Judge Joseph To (“the judge”) on a charge sheet containing four charges. The 1^st charge was “Taking conveyance without authority”, contrary to section 14(1) of the Theft Ordinance, Cap 210. The 2^nd charge was “Dangerous driving”, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374. The 3^rd charge was “Using a motor vehicle without third party insurance”, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. The 4^th charge was “Robbery” contrary to section 10 of the Theft Ordinance, Cap 210.

2.On 29 March 2016 the applicant appeared before the judge and pleaded guilty to all these four charges. 

3.On 14 April 2016 the applicant was sentenced by the judge to a total period of 5 years’ imprisonment.  In addition, in respect of the 2^nd charge, he was disqualified from driving all types of vehicles in Hong Kong for a period of 18 months from the date of his sentence.  For the 3^rd charge he was also disqualified for a period of 18 months, but this time effective from the date of his conviction. Finally, the applicant was ordered to complete a driving improvement course within three months of his discharge from prison.

4.The applicant subsequently applied for leave to appeal against his sentences and at the hearing of this application I granted him leave to amend his first ground of appeal and leave to appeal in respect of that amended ground and his other grounds of appeal.  I said I would hand down my reasons for doing so at a later date and this I now do.

The prosecution case

5.In an Amended Summary of Facts which was used for the purpose of the applicant’s sentencing, the applicant admitted that on 17 November 2015, at around 6:45 am, Lam Wai Lun left his dark coloured light goods vehicle, registration no KK4542, outside the Ground Floor, No 50 Pitt Street, Mongkok, Kowloon and went to a nearby restaurant to collect waste cooking oil.

6.At around 6:50 am on the same day the applicant found Mr Lam’s vehicle unlocked and drove it away.

7.The applicant then drove the vehicle along a number of streets in the area and during his journey the applicant:

(1)   reversed the vehicle along Waterloo Road against the traffic flow until he reached the junction of Dundas Street;

(2)   made a left turn into Dundas Street and then drove along Yin Chong Street towards Fa Yuen Street and rammed into several street stalls at Yin Chong Street;

(3)   reversed the vehicle speedily along Yin Chong Street against the traffic flow until he reached the junction of Yin Chong Street and Kwong Wah Street.  He then reversed the vehicle along Dundas Street against the traffic flow until he reached the junction of Dundas Street and Waterloo Road. Thereafter, the vehicle rammed onto the pavement of Waterloo Road and continued until the applicant reached the entrance of a McDonalds restaurant at the junction of Waterloo Road and Yim Po Fong Street; and

(4)   reversed the vehicle along the pavement of Waterloo Road and then drove back onto the traffic lane of Waterloo Road until he reached the junction of that road and Yim Po Fong Street.  He then made a left turn to Yim Po Fong Street and stopped.

8.At around 6:58 am the applicant alighted from the vehicle and entered the ground floor of lobby of the Stanford Hotel situated at No 118 Soy Street, Mongkok.  He shouted “Robbery, sound the alarm” and pointed a screwdriver towards a member of the hotel staff, who was working at the front desk.  He then entered the front desk area picked up the speaker of a landline phone and pressed on the buttons.  After a while he picked up the staff member’s mobile phone, valued at HK$2,000, and threw the speaker of the landline phone onto the front desk.  He then left the hotel with the hotel employee’s mobile phone via the rear door.

9.At around 7:10 am on the same day the applicant was intercepted by a police officer outside No 15 Kwong Wah Street, which was about 20 metres from the Stanford Hotel.  The stolen mobile phone of the hotel employee could not be found.

10.Under caution at the scene of his arrest the applicant said that he entered the hotel in order to go to the toilet but was refused by the hotel employee whose phone he stole.  It was in response to that refusal that the applicant declared robbery and stole the mobile phone.  He said he later abandoned it at a rear lane outside the hotel. 

11.The police subsequentlyconducted a cautioned video record of interview with the applicant.  The Amended Summary of Facts summarized what the applicant said in that interview as follows:

“(a) On 17^th November 2015, at around 5:00 am, D consumed some ‘ICE’ in a park near his place of abode in Yau Ma Tei before coming to Dundas Street near Kwong Wah Street;

(b) D spotted the LGV was still inserted with the key. Therefore, D drove the LGV away for momentary fun;

(c) D drove the LGV to Yin Chong Street and rammed into a street stall;

(d) D reversed the LGV back to Kwong Wah Street and Waterloo Road;

(e) D then drove the LGV along Waterloo Road and rammed into the railings;

(f) The LGV eventually stopped at the traffic light pole. D then got off from the LGV and looked for a toilet;

(g) Before entering the hotel, D removed his T-shirt and wrapped it over the head since he felt hot;

(h) D entered the hotel lobby and asked the hotel staff if he could use the toilet but was refused in a rude manner, which angered D as a result;

(i) D saw a mobile phone on the front desk and intended to call his female friend ‘Emily’;

(j) D then took away the mobile phone, left the hotel lobby and went to the rear lane for urination;

(k) D wore the T-shirt again after urination at the rear lane;

(l) D was alone throughout the incident; and

(m) The two screwdrivers seized were D’s working equipment and were put inside the left rear pocket of his trousers.”

12.As a result of the applicant’s erratic and dangerous driving twelve oil buckets fell out of the vehicle and their contents were found dispersed on Waterloo Road.  There was also a total of three metres of railings on Waterloo Road which were damaged.  Also damaged was a traffic lamp post erected at Waterloo Road before the junction with Yim Po Fong Street. Finally, four stalls from Yin Chong Street and three shops in Waterloo Road were damaged.  The total damage to the street stalls and shops amounted to HK$174,800.  The estimated cost of repairing the damage caused to the vehicle was around HK$70,000. 

The mitigation

13.The applicant’s counsel informed the court that the applicant was 55 years of age and was single.  He was born in France but he came to Hong Kong when he was 8 years of age.  He was educated only up to Form 5 and after school he worked as a decoration worker, earning about HK$1,200 per day, making an average monthly income of HK$20,000 per month.  He has 10 siblings but most, if not all, are overseas.  The applicant was of clear record.

14.Shortly before the commission of the offence, the applicant had taken some “Ice” which had caused him to become very excitable.  When he encountered the vehicle with the key still in the ignition the applicant decided to steal the vehicle and drive it for fun.  It was because of the affect of the drugs that he had taken that he drove the vehicle in such a dangerous manner.

15.His counsel said that when the applicant went into the hotel he needed to use the toilet and it was only because the staff of the hotel refused his request in such a rude manner that he became angry and pointed the screwdriver at the employee of the hotel and then stole that employee’s mobile phone.  The applicant’s counsel emphasised that the applicant had not caused any injuries to pedestrians.  His counsel also urged the judge to regard all the offences as arising out of the one incident and to impose concurrent sentences for them.

16.In respect of the robbery offence the applicant’s counsel urged the court to adopt a lesser starting point than 5 years’ imprisonment as the weapon employed, a screwdriver, was not in the ordinary sense a dangerous weapon.  Furthermore, he said that, given the distance between the applicant and the hotel employee, the threat of violence to the employee was not too imminent. 

17.On the issue of compensation he said that the applicant had no financial ability to make any compensation either to the employee whose mobile phone he stole or in respect of the property that had been damaged.

The Judge’s Reasons for Sentence

18.After setting out the facts of the offences and the mitigation which the applicant’s counsel had advanced on his behalf, the judge turned to a consideration of the appropriate sentences for each four of the offences. 

19.In respect of the 1^st charge of taking a conveyance without authority the judge noted that there was no sentencing tariff for this offence but that it carried a statutory maximum sentence of 7 years’ imprisonment.  The judge noted the consequence of his conduct was substantial damage to the car and the loss of the waste product that was on board it.  He said that in all the circumstances the proper starting point for the 1^st charge should be one of 12 months’ imprisonment.  After awarding the applicant the usual one third discount for his guilty plea the final sentence became 8 months’ imprisonment.

20.In respect of the 2^nd charge of dangerous driving the judge noted that the maximum sentence was one of three years’ imprisonment.  However he noted also the presence of a number of aggravating factors, all of which, he said, were extremely serious.  The first such factor was the applicant had consumed “Ice” shortly before he drove the vehicle.  Secondly, he had driven the vehicle at high speed, backing or reversing the vehicle against the flow of traffic and onto the pavement, ramming into four street stalls, and three shops.  Thirdly, his manner of driving had caused damage to private property of a significant value.  Fourthly, some of the damaged property belonged to the government.  The judge also noted that the fact that no person had been injured by the applicant was entirely fortuitous.  The judge said a proper starting point for the 2^nd charge was 24 months’ imprisonment, which, when reduced by one-third for the applicant’s guilty plea, became 16 months’ imprisonment.

21.In respect of the 3^rd charge of using a motor vehicle without third party insurance, the judge noted that the maximum punishment was 12 months’ imprisonment.  As this case involved property damage of a substantial value the judge said the appropriate starting point should be 9 months’ imprisonment; and after allowing the applicant’s guilty plea, his sentence became 6 months’ imprisonment on this charge.

22.Finally, in respect of the 4^th charge the judge said that he could find no reason to depart from the 5 years’ imprisonment for the offence of robbery.  When discounted by one third for the applicant’s guilty plea the final sentence became 40 months’ imprisonment.

23.The judge then said that in respect of the 1^st and 3^rd charges, as they shared the same factual origin, it was appropriate to consider whether the sentences should be ordered to run concurrently.  After giving consideration to the totality principle the judge decided that the sentences for the 1^st and 3^rd charges should be served wholly concurrently resulting in a total sentence of 8 months’ imprisonment for those two offences.  However, he decided that four months of these two sentences should be served consecutively to the 16 months’ imprisonment in respect of the 2^nd charge, thus making a total sentence of 20 months’ imprisonment for the first three charges. 

24.The judge then ordered that this 20 months sentence should run wholly consecutively to the 40 months’ imprisonment for the robbery offence that is the 4^th charge.  This made a total sentence of 60 months’ imprisonment.

25.The judge made it clear in his Reasons for Sentence that he was aware that such a sentence reflected an effective global starting point for the four charges of 7½ years’ imprisonment which was in excess of the the District Court’s jurisdictional limit of 7 years’ imprisonment but he said that such a starting point was warranted.  He further said that in his view the discounted sentence of 60 months’ imprisonment still provided for a meaningful discount from the sentencing limit of 7 years.

The Perfected Grounds of Appeal Against Sentence

26.By his Perfected Grounds of Appeal Against Sentence the applicant raised five grounds of appeal.  The first ground is that the starting point of 5 years’ imprisonment that was adopted by the judge in respect of the 4^th charge of robbery was excessive in that the judge failed to take account of the fact that the screwdriver carried by the applicant in committing the offence was not a dangerous weapon per se.  Upon questioning by the court it appeared that the applicant’s complaint was, in reality, that in the unusual circumstances of this case it was an error by the judge to adopt the starting point laid down by the Court of Appeal in Mo Kwong Sang v The Queen.[1]  Mr Victor Cheung applied to amend ground 1 and I gave him leave to do so.

27.The second complaint is the judge erred in not ordering the sentences for all of the charges to run wholly concurrently. Allied with this ground is the third complaint which is that the judge erred in ordering 4 months’ imprisonment of the concurrent sentence from the 1^st and 3^rd charges to run consecutively with the sentence for the 2^nd charge.

28.In support of this ground Mr Cheung referred to cases where similar offences had been ordered to be served concurrently. However, those cases are simply examples where a particular course of action had been taken and do not contain any statement of legal principle.  Indeed, Mr Cheung accepted that the correct legal principles are those articulated in HKSAR v Ngai Yiu Ching.[2]

29.The fourth ground of appeal is that the judge failed to give sufficient regard to the totality principle in that a total sentence of 5 years’ imprisonment reflected a notional global starting point of 7½ years’ imprisonment.

30.The final ground of appeal is simply that in all the circumstances the case the sentence of 5 years’ imprisonment for these four charges was wrong in principle and manifestly excessive.

The respondent’s submissions

31.In respect of the first ground of appeal the respondent referred the court to two decisions of the Court of Appeal[3] where it had been held that a screwdriver could be just as threatening as a knife when used by a defendant to intimidate his intended robbery victim.  In respect of the amended ground 1 the applicant emphasized that irrespective of how the offence came to be committed, to the victim it would have seemed to be a serious robbery by an intimidating, armed person.  Furthermore, the applicant cannot use his self-induced intoxication from “Ice” as a mitigating feature. 

32.In respect of the second ground of appeal the respondent submitted that the robbery was a quite separate offence and the judge was entitled, as a matter of principle, to order consecutive sentences. Only charges 1-3 could be said to be part of the one transaction.  In this respect the applicant referred the court to what had been said by Stock VP in HKSAR v Ngai Yiu Ching[4] on the principled approach to ordering sentences to be served either concurrently or consecutively.  Applying this approach, Mr Franco Kuan, Senior Public Prosecutor, for the respondent, submitted that as the seriousness of charge 2 added to the culpability of charges 1 and 3 the judge was right to order that part of the sentence for that offence should be served consecutively.

33.Finally, Mr Kuan submitted that, given the circumstances of these offences, a starting point of 7½ years is not excessive. 

Discussion

34.In support of the amended 1^st ground of appeal there is no doubt that the circumstances of the robbery offence are unusual.  There does not appear to be any premeditation to the offence.[5] There is no reason to believe that when the applicant entered the Stanford Hotel he intended to commit a robbery.  He was no doubt high on “Ice” and, after such a crazy episode of dangerous driving, probably also adrenaline.  If the robbery was a spur of the moment action prompted by the applicant’s excitable condition then, in my view, it is reasonably arguable, and I place it no higher than that, that a departure from Mo Kwong Sang may be justified.

35.In respect of the dangerous driving offence and the using a motor vehicle without third party insurance offence the judge took into account the fact that the applicant had caused property damage of a substantial value. This fact would appear to be the primary reason for him adopting a high starting point for sentence.  There is no sentencing tariff for this offence and with the offence carrying a maximum sentence of only 12 months’ imprisonment, a starting point of 9 months’ imprisonment is close to the maximum.  I am of the view that it is reasonably arguable that the starting point is excessive and that there might be double counting in respect of the non-compensable property damage loss caused by the applicant.  I also think it is reasonably arguable that even if the 3^rd charge does add to the culpability of the applicant, an additional 4 months’ imprisonment is an excessive punishment for that added culpability.  However, as that 4 months’ imprisonment also reflects the added culpability of the 1^st charge it may be that even if there is excessiveness in respect of the 3^rd charge it does not affect the final result.

36.I agree with Mr Cheung that the 4^th and 5^th grounds of appeal are reasonably arguable.

Conclusion

37.For these reasons I granted leave to appeal in respect of the amended ground 1 and all other grounds in the applicant’s Perfected Grounds of Appeal Against Sentence. 

Mr Franco Kuan SPP, of the Department of Justice, for the respondent

Mr Cheung Chi Fai Victor, instructed by Raymond Chan, Kenneth Yuen & Co, assigned by DLA, for the applicant