HKSAR v. Yang Xingyun

CACC 155/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 155 OF 2016

(ON APPEAL FROM HCCC NO 64 OF 2016)

________________________

BETWEEN

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.The applicant faced seven charges, namely one charge of Robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210 (Charge 1); three charges of Theft, contrary to section 9 of the Theft Ordinance (Charges 2 to 4); and three charges of Obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, (Charges 5 to 7).

2.He pleaded guilty to all seven charges at the Magistrates’ Court, as a result of which he was committed to the High Court for sentence.  On 10 May 2016, the applicant was sentenced by Zervos J (“the judge”) to a total term of 9 years and 8 months’ imprisonment.

3.On 10 January 2017, we dismissed the applicant’s appeal against sentence, indicating that we would hand down the reasons for our decision in due course.  These are our reasons.

The facts

4.The applicant, a Mainland resident and a two-way permit holder, entered Hong Kong at 11:03 hours on 17 March 2015.  At 20:18 hours on the same day, he was observed by the hotel CCTV camera system entering L’Hotel Nina, situated at 8 Yeung Uk Road, Tsuen Wan, New Territories, two minutes after PW1, a visitor to Hong Kong, had arrived at the hotel.  He was then seen loitering in the hotel lobby.  At 20:36 hours, the applicant was seen tailing PW1 when she checked into her room.  At 21:51 hours, he was seen tailing her again when she returned to her room after dinner.

5.Unaware that the applicant was following her, PW1 opened the door of her room on her return from dinner with her room key.  As she did so, the applicant suddenly pushed her from behind into the room.  Holding her by the neck, he told her in Putonghua to “behave”.  He pushed her beside a wardrobe but she fell onto the floor.  The applicant picked her up and threw her onto the bed.  PW1 was then blindfolded with adhesive tape and her hands tied behind her back with a plastic zip tie.  The applicant then turned on the television and turned up the volume.

6.Pretending to be sick, PW1 crawled off the bed onto the floor.  As the applicant took PW1 to the sofa, she was somehow able to pull away the adhesive tape and run towards the door.  The applicant immediately grabbed her and threw her again onto the bed, before punching her on her back, head and hands.  Since PW1 was struggling, the applicant said he no longer trusted her and applied some ointment to her eyes, resulting in irritation to her eyes such that she was unable to open them. The applicant then proceeded to blindfold PW1 with more adhesive tape, which he wrapped around her head.  He again tied her hands tightly behind her back with another zip tie.  PW1 begged the applicant to release her.

7.About two hours later, the door bell rang.  PW1 shouted for help but to no avail.  The applicant then proceeded to punch her in the face and head.  He gagged her with a towel and tied her feet together with a zip tie.  The applicant then asked PW1 for the password and the credit limits of three bank/credit cards that he had found inside her wallet.  Fearing for her safety, PW1 gave the applicant the information.

8.Ignoring her further pleas to be released, the applicant poured some liquid into her mouth, which PW1 spat out.  Later forensic tests on the liquid on the towel and two pillow cases revealed that the liquid contained Estazolam, which was also subsequently found in a blood sample taken from PW1.  Estazolam is a sedative capable of causing somnolence, headaches and asthenia.

9.Having been told the information in relation to her bank/credit cards, and having taken her mobile telephone, the applicant threatened PW1 that if she had revealed the wrong information to him, he would return to cut off her ears.  At about 07:25 hours on 18 March 2015, the applicant left the room.

10.PW1 was able to loosen her restraints using the handle of the wardrobe and called the hotel staff for help.  Hotel staff subsequently entered the room, where they found PW1 still tied up and blindfolded.  The police were immediately informed.

11.Upon a check of her property, it was found that PW1 had been robbed of a Prada handbag inside of which was a Gucci wallet, a Samsung mobile telephone, cash amounting to some HK$1,100 and RMB3,600, and three bank/credit cards, two issued by the China Merchants Bank (Accounts No 1 and No 2) and one by the China Guangfa Bank (Account No 3).

12.Subsequent police investigations also revealed that, on the morning of 18 March 2015, the following withdrawals were effected from the applicant’s bank accounts by means of the three bank/credit cards:

(a) an unauthorised withdrawal of RMB4,000 from Account No 2, the subject matter of Charge 2;

(b) an unauthorised withdrawal of HK$6,000 from Account No 3, the subject matter of Charge 3; and

(c) an unauthorised withdrawal of HK$2,000 from Account No 1, the subject matter of Charge 4.

13.Later the same morning, the applicant went to a shopping mall, known as Landmark North in Sheung Shui, where he presented the credit card linked to Account 3 and successfully purchased the following items from the following shops:

(a) a mobile telephone “iPhone 6 Plus” for HK$6,388 from Hong Kong Suning Commerce Co Ltd, the subject matter of Charge 5;

(b) a pair of sports shoes and a backpack for HK$1,087 from an Adidas shop, the subject matter of Charge 6; and

(c) a pair of blue sports shoes at RMB599 from Sketchers Hong Kong Ltd, the subject matter of Charge 7.

14.At 13:32 hours on the same day, the applicant left Hong Kong, and was duly placed on the ‘watch list’.  On 7 April 2015, he returned to Hong Kong, whereupon he was intercepted and arrested by the police.  Under caution, he denied going to Tsuen Wan on 17 March 2015.  He also refused to participate in any identification parade.

15.On 10 April 2015, he was confronted by PW1 and one of the sales assistants who had served him at Landmark North, and positively identified by them both.

The victim’s statement

16.On 11 April 2016, just over a year later, PW1 made a statement setting out the impact which the applicant’s crimes had had on her as a victim of crime.  In what the judge described as an “intelligently and thoughtfully written” statement, PW1 detailed the trauma of what she had been through at the hands of the applicant, how she had sustained significant physical and psychological harm, had become paranoid about being followed and was living in constant fear and anxiety, as she relived the experience of being abducted, tied up, drugged and assaulted.  She also said she lived in fear of reprisals, since the applicant had discovered a lot of personal information about her from her mobile telephone.  Her elderly parents had also been devastated by what had happened to her.

Mitigation

17.The applicant was 54 years of age at the time and of clear record.  It was submitted that, having graduated from a Mainland university where he had read economics, he worked as a freelance columnist in economics.  He was a divorced man with a daughter who was suffering from cerebral palsy, the responsibility for whose care now rested on his sister-in-law.  Over the past seven or eight years, he had been suffering from diabetes.

18.Defence counsel in the court below produced a handwritten letter of mitigation from the applicant, in which he expressed his remorse and tendered an apology to the victim.  He also claimed that he had committed the present offence because of his financial difficulties.

19.Counsel accepted that the applicant’s guilty plea, which had at least saved the victim from having to give evidence, formed the only mitigation and conceded that the present case was a “very bad case” with “many aggravating factors”.  Although he did not advance a sentence which might be appropriate in the circumstances, counsel invited the judge to consider the principle of totality and treat all individual sentences concurrently.

Reasons for sentence

20.In sentencing, the judge took into account the victim’s statement.  He noted that the applicant had refused to provide an antecedent statement, which thereby deprived the court of some of the assistance that was usually available during the sentencing process.

21.Of the circumstances leading to the present offence, the judge said, inter alia:

“This is a grievous case of robbery. It was well planned and ruthlessly executed. On the very day that he came to Hong Kong from mainland China, the defendant went to a hotel and monitored incoming guests. He was identifying a potential victim for robbery.

He chose a female who was alone. He observed and stalked the victim. He monitored her movements and made sure she was on her own before he followed her and forced himself into her hotel room. He blindfolded her and tied her up. He had equipped himself with adhesive tape and plastic zip ties which he used to tie up the victim.

He threatened and assaulted her. He assaulted her on several occasions and she sustained extensive bruising to her face, chest, hands and legs. He administered a substance to her eyes, which he claimed was toothpaste, so she could not see and tried to drug her so that she would be rendered somniferous. He had equipped himself with the drug which he forced the victim to swallow so as to subdue her.

He forced her to disclose information so that he could use her credit cards.  He threatened to cut off her ears if the information about her credit cards was not correct. He had the victim tied up and bound for nearly 10 hours.  He waited until the next morning so he could use the credit cards to withdraw cash and purchase goods.  Immediately thereafter he left Hong Kong and returned to mainland China.”

22.The judge noted that the sentencing guidelines in Mo Kwong Sang v R[1]stipulated that a sentence of 5 years’ imprisonment was appropriate in a case of armed robbery where a defendant carried a knife or other dangerous weapon, which he displayed to the victim; that a sentence of 6 years’ imprisonment was appropriate where the robbery involved an invasion of private premises; and a sentence of 7 years’ imprisonment should be considered if physical violence, including tying up the victim, was used.  Despite the fact that no weapons had been used in the present case, the judge considered that the use of superior physical strength or some other device or method, such as administering a drug, to terrorise the victim would be equally effective.

23.The judge also considered the aggravating factors considered in other robbery cases, namely, HKSAR v Zhang Wei[2], HKSAR v Ting Chiu & Anor[3], HKSAR v Wang Wei[4] and HKSAR v Obiagwu Oluchukwu Christian[5].  The judge identified no less than 13 aggravating features in the present case, which were as follows:

(1) The applicant entered Hong Kong for the specific purpose of committing the robbery and then left afterwards;

(2) The robbery was well-planned and premeditated;

(3) The robbery was committed in premises akin to domestic premises, namely a hotel room;

(4) The applicant monitored and stalked the victim;

(5) The applicant targeted a female visitor who was alone;

(6) The applicant was notably physically stronger than the victim and displayed a preparedness to use physical violence;

(7) The applicant used a substance to affect the sight of the victim and administered a drug to her;

(8) The applicant blindfolded and tied up the victim;

(9) The applicant kept the victim captive for a period of almost 10 hours, during which he remained with her in the room;

(10) The applicant assaulted the victim and inflicted actual bodily harm on her;

(11) The applicant threatened the victim with physical violence;

(12) The applicant obtained the passwords to her credit cards by way of threat; and

(13) The victim suffered consequent physical and psychological harm.

24.In the result, the judge adopted the following starting points:

(a) 11 years and 6 months’ imprisonment in respect of Charge 1;

(b) 2½ years’ imprisonment in respect of each of Charges 2 to 4; and

(c) 3 years’ imprisonment in respect of each of Charges 5 to 7.

Allowing a full one-third discount for the pleas of guilty, the sentences were then reduced to 7 years and 8 months’ on Charge 1; 20 months’ imprisonment for each of Charges 2 to 4; and 2 years’ imprisonment for each of Charges 5 to 7.

25.The judge then ordered that all the sentences should run concurrently with each another, save that 2 years’ imprisonment of the concurrent sentences on Charges 5 to 7 should be served consecutively to the 7 years and 8 months’ imprisonment on Charge 1, thereby resulting in a total sentence of 9 years and 8 months’ imprisonment.

Grounds of appeal

26.Mr Boey Chung, on behalf of the applicant before us but not in the court below, complained that the starting point adopted in respect of Charge 1 was manifestly excessive, leading to a manifestly excessive total sentence.

27.Mr Chung disputed six aggravating factors identified by the judge (at para 23 above), namely:

(a) Factor (3): counsel argued that the hotel room in question, where PW1 would only stay for a short period of time, should not be considered domestic premises;

(b) Factor (4): this factor, it was submitted, should not be treated as an independent aggravating factor since it overlapped with factor (2), namely that the robbery was well-planned and premeditated;

(c) Factor (5): counsel said that robbery on a female who was alone ought not to be dealt with more seriously by the courts.  By way of analogy, he cited the case of HKSAR v Ting Chiu & Anor[6], where this Court held that “… we cannot accept that robbery on hikers should be dealt with more seriously by the courts than robberies on other persons.  We do not see any special aggravation of the offence when it is committed on a hiker than any other robbery where the culprit, for example, waylays a victim in any public place”[7];

(d) Factor (6): counsel submitted that it was common for robbers to pick a target who were physically weaker than themselves, and that the use of force, being an element of the offence of robbery should not be treated as an aggravating factor.  As a fallback argument, Mr Chung contended that factor (6) should not be singled out for separate treatment, given the judge’s identification of factor (10);

(e) Factor (7): counsel was concerned about double counting.  It was argued that the judge appeared to have adopted a basic starting point of 5 years’ imprisonment, although it was an unarmed robbery.  Accordingly, any aggravation for this factor should already have been reflected in an enhanced starting point; and

(f) Factor (10): it was submitted that the level of violence used by the applicant did not exceed the level necessary for the commission of the offence.

The respondent’s submissions

28.Mr Pierre Lui, on behalf of the respondent, in his helpful submissions, has classified the 13 aggravating factors identified by the judge into four categories, namely those relating to (1) the circumstances of the offence, (2) the harm caused to the victim, (3) the harm caused to society, and (4) the circumstances of the applicant.  He submitted that when those matters were globally considered in the context of the present case, the starting point of 11½ years’ imprisonment in respect of Charge 1 was not a day too long.

29.In respect of the issue of whether a hotel room should be treated as domestic premises, Mr Lui referred us to HKSAR v Ng Wai Hing[8], where this Court held that:

“28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.

29. It may not be too helpful to decide if a hotel room should be categorized as domestic or non-domestic for sentencing purpose. A hotel is in a category of its own. But the aggravating factor involved in burglary of domestic premises is certainly present in the case of burglary of a hotel room.

30. Indeed a hotel is meant for visitors to whom the trauma of being burgled may well in some cases be more profound and intense, particularly if passports, credit cards and spending money or the like are stolen. The image of Hong Kong in the international community will also be significantly affected by such crime.

31. We are of the view that burglary of a hotel room should at least attract the same sentence as that of domestic premises. The judge is right in adopting a starting point of 3 years for the burglary charge.”

30.Mr Lui further argued that since the offence involved a mainland visitor being targeted in a local hotel, it would tarnish Hong Kong’s reputation for order and security, as well as its hotel industry, which is an important facet of life in Hong Kong.  This, he said, was an additional aggravating feature of the offence, which was not specifically referred to by the judge.

31.In respect of the robbery of a single female, Mr Lui cited the cases of HKSAR v Zhang Wei[9] and HKSAR v Muhammad Waqas & Anor[10] in support of the proposition that targeting a lone female for robbery was an aggravating factor.

32.Of the level of violence and threats used in committing the robbery, Mr Lui stressed that the applicant had detained PW1 for almost 10 hours and used gratuitous force against her face, head and eyes which were the more sensitive parts of her body.

33.Mr Lui said that the commission of the other offences to which the applicant had pleaded guilty had added to his culpability. As such, whilst accepting that the ultimate sentence of 9 years and 8 months’ imprisonment was severe, Mr Lui submitted that it was not manifestly excessive.

Discussion

34.It should be remembered that this Court has never laid down for the offence of robbery sentencing tariffs of the kind employed for drug trafficking offences; although it has, from time to time, given guidance on how particular forms of robbery should be sentenced[11].  Rather, the Court has provided guidelines as to the minimum sentences that should usually be imposed in ordinary cases which do not involve the presence of aggravating features, and suggested how various aggravating features might impact on such a sentence.  It should not be assumed that the list of such aggravating features is closed.

35.An example of where this Court has created one particular aggravating feature, which is also present in the case before us, is the case of HKSAR v Wang Wei[12].  There, the Court said that if the robbery involved the theft of the victim’s ATM card and the extraction from the victim of his PIN number, then that was an aggravating feature of the offence of robbery.  The Court went on to say that “detention of a victim by a robber whilst his colleague goes off to secure cash from an ATM machine is a still further aggravating feature …”[13].  Clearly, the list of aggravating factors where robberies are concerned is not closed, and from time to time this Court may add to that list.

36.It is also clear that where there are so many aggravating features in a particular course of criminal conduct, there will inevitably be an element of overlap between them.  Thus, for example, a defendant who enters Hong Kong for the sole purpose of committing a serious robbery, carrying with him the equipment necessary to blindfold, tie up and drug a suitable victim, finding a victim and then monitoring and stalking her before robbing her while keeping her captive for 10 hours, would clearly indicate considerable planning and premeditation, which is a significant aggravating feature of the offence of robbery.  But those facets of the conduct are discrete aggravating features in themselves; namely, coming to Hong Kong as a visitor with the specific intention of committing a serious crime, blindfolding and tying up the victim, administering a drug to the victim and keeping her captive for several hours.  There is an obvious overlap because many of the aggravating features identified by the judge fall into more than one of the classifications identified by Mr Lui.

37.Moreover, one could break down the criminal conduct in this case into multiple separate offences committed over the course of PW1’s 10-hour ordeal inside the hotel room: for example, burglary[14], theft[15], assault occasioning actual bodily harm[16], false imprisonment[17], administering a stupefying drug with intent to commit an indictable offence[18] and, of course, robbery.  But to compartmentalise the applicant’s crimes in this way could distort the overall sentence.  Quite properly, the conduct has been subsumed within a single charge of robbery, for which the maximum sentence is life imprisonment.  What will determine the starting point for sentence will be the various aggravating features attending the offence.

38.It can in such circumstances be somewhat artificial to identify a specific base starting point, which is then increased by defined or prescribed increments: indeed, the danger is that by adopting too mathematical an approach by the addition of a specific increase for each particular aggravating feature, particularly where there is an element of overlap between those factors, the sentence becomes unrealistic and excessive.  As the Court in HKSAR v Wang Wei put it[19]:

“Sentencing is not a question of precise mathematical progression for each aggravating feature…”

39.The case before us was one which, by virtue of the sheer number, nature and seriousness of the aggravating features present, did not fit neatly into the graduated, structural approach set out in Mo Kwong Sang v R[20].  In our judgment, the judge was correct to identify the relevant aggravating features of the applicant’s conduct and then to determine the appropriate global starting point for that particular conduct.  The starting point he considered appropriate for the applicant’s criminality for the robbery offence, in the light of the circumstances he set out, was 11½ years’ imprisonment.  Our task is to consider whether that is a proper starting point on these facts within the range of sentences open to a sentencing judge after trial.  In making that assessment, we note what was said by this Court in HKSAR v Sandagdorj Altankhuyag & Anor[21]:

“As this Court has repeatedly said, the facts in each case will be different and the significance to be attached to a particular feature will vary depending on the circumstances of the individual case. … We are more concerned with whether or not those aggravating features that were present in this case justified, in the exercise of his discretion, the starting point of 30 months’ imprisonment adopted by the trial judge.”

40.Although Mr Chung, for the applicant, has mounted a spirited attempt to impugn the severity of the sentence passed, his submissions amount to a complaint about the inclusion and significance of a particular aggravating feature and whether or not it was possibly counted twice.  We do not accept those criticisms.

41.First, if the courts regard hotel rooms as akin to domestic premises for the purposes of burglary sentences, they are private premises for the purposes of robbery sentences.  And if, in respect of a burglary of a hotel room, “the image of Hong Kong in the international community will … be significantly affected by such crime”[22], so will it be affected if the crime is a robbery inside a hotel room.  As was pointed out in HKSAR v Ngai Kai Leong[23]:

“Furthermore, the victims of both offences, as might be expected since they involved burglaries of hotel rooms, were visitors to Hong Kong: Mr Huang having arrived with his family as a tourist for sightseeing, Mr Chung having come on business. The burglary of hotel rooms has obvious implications for the reputation of Hong Kong’s hotel and service industry, which is a highly prized and important part of the life of this City.” (Emphasis added)

42.Secondly, the judge was plainly right to regard the robbery of a lone, defenceless woman at night as an aggravating feature. The proposition hardly needs authority to support it.  It must be a particularly terrifying experience for any woman on her own, faced with a violent man in the privacy of her home or a hotel room for some 10 hours, wondering what else he might be minded to do to her when she is effectively at his mercy.  That terror would be intensified when he attempted forcibly to administer an unknown liquid down her throat.

43.Thirdly, the submission that the level of violence used in this particular case was no more than necessary in order to commit the offence of robbery is frankly preposterous.  PW1, a young woman aged 32, was pushed, grabbed, dragged and thrown onto the bed twice.  She was punched in the face, in the back and on her head on two occasions.  She was blindfolded and tied up tightly twice before being gagged with a towel.  A substance was administered to her eyes causing severe irritation.  An unknown liquid was poured into her mouth and she was threatened with mutilation.  Her ordeal lasted some 10 hours, throughout which she remained wide awake.  She sustained obvious injuries to her body and eyes.  She has been left psychologically scarred.  With great respect, this is not a submission that should have been advanced before this court.

44.Finally, we do not accept that there has been any double-counting of aggravating features in this case.  As we have endeavoured to point out, the same conduct will often ground more than one aggravating feature for sentencing purposes, which features may carry different values in the overall assessment of the sentencing judge.  What this Court is ultimately concerned to determine is whether those aggravating features that were present in the case justified the notional sentence after trial adopted by the sentencing judge, and whether the sentence was manifestly excessive.

45.We have no hesitation in saying that this was a richly deserved sentence in respect of the charge of robbery.  The aspects which stand out as seriously aggravating features were the level of violence and violation meted out over an extended period to a lone woman effectively held prisoner in a hotel room, and the fact that the applicant came to Hong Kong with the obvious intention of committing a serious crime, equipped with the means to achieve it.

46.Hong Kong is a hospitable city, which is visited by millions of people each year who come to do business and enjoy what the city has to offer.  We wish to make it clear that if people come to Hong Kong for the purpose of committing serious crimes which threaten the order and security of the people of Hong Kong and the reputation of this City, they can expect no mercy from the courts.

47.We agree with Mr Lui that the sentence for robbery in this case was not a day too long.

48.No separate argument was raised by Mr Chung with regard to the other sentences passed, either individually or in terms of the consecutive component of 2 years’ imprisonment in respect of Charges 5 to 7.  Nevertheless, we have considered whether the other sentences were manifestly excessive or wrong in principle either as individual sentences, or by virtue of 2 years’ imprisonment of the concurrent sentences on Charges 5 to 7 being ordered to run consecutively to the sentence for the robbery offence.

49.We do not think there can be any complaint about the individual sentences in respect of Charges 2 to 7, none of which were manifestly excessive and all of which were consistent with authority from this Court. As for the ordering of 2 years’ imprisonment to run consecutively to the sentence for robbery, Charges 5 to 7 were separate and distinct offences committed later that day.  They also involved other victims, namely the companies whose goods were fraudulently obtained.  It must be remembered that the courts regard credit card fraud, including the fraudulent use of both genuine and counterfeit credit cards, as itself a very serious matter.  As Litton JA (as he then was) said in R v Kwan Ying Ho[24], at p 5:

“…credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.”

50.More recently, in HKSAR v Lam See Chung Stephen[25], the Court held:

“39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.”[26]

40.  These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see no good reason why the three-year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.”

51.The judge in the present case in fact specifically referred to HKSAR v Lam See Chung Stephen in adopting a 3-year starting point in respect of Charges 5 to 7.  In our judgment, the individual sentences of 2 years’ imprisonment in respect of Charges 5 to 7 after plea cannot be faulted.  Nor can the sentences of 20 months’ imprisonment in respect of Charges 2 to 4 after plea be criticised.  Furthermore, the consecutive element of 2 years’ imprisonment for the three offences in Charges 5 to 7, in conjunction with the concurrent sentences of 20 months’ imprisonment in respect of Charges 2 to 4, properly reflected the full scale of the applicant’s crimes.  We can see no reason to interfere.

52.For these reasons, the application for leave to appeal against sentence was refused and the appeal dismissed.

Mr Pierre Lui SPP (Ag), of the Department of Justice, for the Respondent

Mr Boey Chung, instructed by Chiu, Szeto & Cheng, assigned by the Director of Legal Aid, for the Applicant

[1] [1981] 1 HKLR 610.

[2] [2014] 6 HKC 599.

[3] [2003] 3 HKLR 378.

[4] [2010] 5 HKC 45.

[5] [2011] 1 HKC 453.

[6] [2003] 3 HKLRD 378.

[7] ibid., at 383D-E.

[8] [2003] 2 HKLRD 338.

[9] [2014] 6 HKC 599.

[10] (unrep., CACC 392/2012, 24 July 2013).

[11] eg R v Tran Van Anh [1993] 2 HKCLR 122 (taxi robberies); R v Ng Po Wah [1996] 1 HKC 457 (lift robberies); Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312 (so-called “head-bashing” robberies).

[12] [2010] 5 HKC 45.

[13] ibid., at 50G.

[14] Contrary to section 11 of the Theft Ordinance, Cap 210.

[15] Contrary to section 9 of the Theft Ordinance, Cap 210.

[16] Contrary to section 39 of the Offences Against the Person Ordinance, Cap 212.

[17] Contrary to Common Law and section 101I of the Criminal Procedure Ordinance, Cap 221.

[18] Contrary to section 21 of the Offences Against the Person Ordinance, Cap 212.

[19] [2010] 5 HKC 45, at 50E.

[20] [1981] HKLR 610.

[21] [2014] 1 HKC 206, at 211A-C.

[22] HKSAR v Ng Wai Hing [2003] 2 HKLRD 338, at 343B.

[23] (unrep., CACC 83/2016, 22 July 2016).

[24] (unrep., CACC 527/1992, 12 August 1993).

[25] [2013] 5 HKLRD 242, at 251-252.

[26] HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, at 778.