HKSAR v. Cheung Hon Yuen

HCCC 185/1989
[2018] HKCFI 128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 185 OF 1989

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant had pleaded guilty today to two counts of robbery. The 1st count of robbery happened on 29 March 1988, and the 2nd count of robbery was on 15 May 1988.

When the case was supposed to have started on the first day for his trial on 10 August 1989, it was found that he had absconded, after having been granted bail.

He has been rearrested on 31 May last year, after he surrendered himself to the Tai Po Police Station.

Now, the facts of the case in the first robbery was that the victim in the early morning, had gone to his lorry, which was parked outside his home. When the victim opened the door of his lorry and went into the driver’s seat, a man approached with a butcher’s knife and smashed the glass window of the door. Another man approached from the other side and also used a butcher’s knife to smash the window of the other door. The two men boarded the vehicle and pointed their knives at the victim.

The victim subsequently had his necklace snatched from him. The necklace at that time was worth about $4,000. Also taken from the victim was a Rolex watch worth about $12,000 at the time, and a money bag containing $4,600. The victim was tied up with a towel, and his head was covered after he had been driven to a construction site.

After he was left by himself, the victim managed to free himself and make a report to the police. Superficial injuries was done to his left hand when his Rolex watch was snatched away from him.

In relation to the second robbery, that happened on 15 May 1988. The victim was a proprietor of a snack shop, and in the evening, when she was on her way home, on the 1st Floor landing on her staircase leading to her home, she was approached by a man, who threatened her not to move, and that he would stab her to death if she shouted.

She was then pushed the face to wall and forced to kneel down. And he also displayed a knife. A bag she had with her containing cash of $20,000 was taken from her. A witness in a nearby shop heard someone shouting robbery, and saw two men boarding a private car, and inside the car were two other persons.

Subsequently, in 1989 February, the defendant was arrested at a roadblock. Under caution, he admitted to having committed the two robberies with other persons. He also admitted that after the robbery, he had a share in the stolen properties, together with the others, and he claimed that he was the driver of the car in relation to the second robbery, he was the driver of the getaway car, and that they all shared the proceeds of the robbery subsequently.

The defendant, after absconding, before the first day of his trial in 1989, was not located until on 31 May 2017, when he surrendered to the Tai Po Police Station, and he therefore had remained outside the law, having absconded for over 27 years.

Miss Lai had said everything she could possibly say in mitigation on his behalf. The only mitigation I can see is that the defendant now has pleaded guilty to the charges. He had a clear record, and according to Ms Lai, he was led astray by dubious friends he had met.

Nevertheless, these offences were committed when he was 24 years old. He was not a teenager, and Ms Lai gave an account of him living whilst running away from the police, about his living arrangements, being poor, and the fear he had during these 27 years. Well, as she correctly conceded, this is all his own doing, and it is not mitigation.

A point was made by Ms Lai, rightly, that the defendant did confessed to the offences, and that none of the witnesses could identify him.

Now, this case happened in 1988, so the guideline which was laid down in the case of Mo Kwong Sang (CACC 359/1981) did apply, because Mo Kwong Sang was in 1981, and the Court of Appeal in that case had identified that for armed robbery where the robbers carried knives and other dangerous weapons, then a guideline sentence of 5 years’ imprisonment should be given; if there was an invasion of private premises, which in Charge 2 was the case, because the robbery happened in a staircase, then the sentence should be one of 6 years’ imprisonment after trial; and if there is physical violence, which includes tying up the victim, then 7 years should be considered, and this happened in Charge 1, where the victim was tied up.

The Court of Appeal also noted that there may be other aggravating factors which included the presence of more than one person in the group of robbers, and threats made to victims. And also, in this case, the two robberies occurred within a few months of each other.

And then in paragraph 16 of the judgment, the Court of Appeal noted that these guidelines are intended to apply to those who are convicted after a trial, and these sentences should be reduced by such amount as the court may think appropriate for a plea of guilty. So in the year of 1988, there was no consideration that for a timely plea, the courts would normally give a reduction of one-third in the sentence. So I have to consider, therefore, what the prevailing circumstances were at the time in 1989.

In relation to Charge 1, as I have said, there was a tying up of the victim, and his head was covered. Knife was displayed, and so a 7 year term of imprisonment is appropriate.

Plus the other aggravating factors, there were more than one person at the time, committing this robbery. And as I have said, the two robberies were committed within a few months of each other. So I would consider, therefore that in relation to Charge 1, an application starting point sentence would be one of 8 years’ imprisonment.

Now, I do consider that it would be inappropriate to give a reduction of one-third, because one-third is given for timely pleas. In this case, the defendant had absconded prior to the first day of his trial. He had not made a timely plea at the time, and however, of course, I do have to give him some consideration in view of the fact that he has pleaded guilty now. So I consider that a reasonable reduction would be one of about 20 per cent off, so reducing the sentence to one of 6 years and 4 months.

Now, in relation to Charge 2, there was an invasion of private premises, because the robbery happened in the staircase of the building. So the starting point sentence of 6 years plus the aggravating factor that threats were made to the victim, and there were more than one person committing the robbery. So I would add 1 year for the aggravating factors, bringing the starting point to 7 years. And as in the case of the 1st charge, I would reduce it by about 20 per cent, and therefore, giving a sentence of 5 years and 7 months.

Now, I have to consider the totality principle. And having taken into account all the circumstances in this case, the background, I will sentence the defendant on the 1st charge to 6 years and 4 months; on the 2nd charge, to 5 years and 7 months, with 3 years of that sentence to be served consecutively to the sentence in the 1st count, and therefore, giving a total of 9 years and 4 months’ imprisonment.