HKSAR v. Mishchenko Oleg

CACC 246/2017

[2018] HKCA 51

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 246 OF 2017

(ON APPEAL FROM HCCC NO. 180 OF 2017)

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J U D G M E N T

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1.The applicant, who appears in person, seeks leave to appeal against the sentence of 5 years and 4 months’ imprisonment imposed on him by Zervos J on 25 July 2017, following his plea of guilty on 29 May 2017 in Eastern Magistrate’s Court, to a count of robbery on 24 November 2016, contrary to section 10 of the Theft Ordinance, Cap. 210.

The facts

2.Having arrived in Hong Kong by aeroplane on 23 November 2016, on the evening of the following day the applicant robbed a member of the staff of the Travelex Currency Exchange Shop in Terminal 2, Hong Kong International Airport.  Brandishing a knife with a blade of 6 to 7 inches in length, the applicant climbed onto the counter of the shop.  Ms Tse, the only employee on the premises at the time, tried to escape but the applicant placed her neck in an arm lock and, having pointed the knife at her, demanded “money”.  The applicant took the money, $58,220, handed over by Ms Tse and fled on foot.  Although he boarded several taxis, their drivers, who had been alerted by the passers‑by, abandoned their taxis, so that the applicant was forced to try and make good his escape on foot.  However, he was confronted by a special squad of police officers stationed at the airport.  The applicant dropped the knife only after the police officers drew their firearms and pointed them at him.

3.In a subsequent video recorded interview, the applicant, an unemployed Russian ex‑soldier, said that he had come to Hong Kong for sightseeing on the morning of 23 November 2016.  Having arrived in Hong Kong he had exchanged currency at the very same Currency Exchange premises that he robbed the following day.  He admitted that during the robbery he had jumped over the counter and threatened the employee with a knife.  He claimed that he did so for fun.  He had bought the knife the previous day for $1,000.  He intended to use it for lawful purposes.

4.Ms Tse had sustained bruising to her knee and had been granted four days’ sick leave.

Mitigation

5.In mitigation Mr John McNamara said that the applicant, a 45‑year‑old divorced man with no previous convictions, was unable to explain why he had committed the offence.  He said that the applicant had purchased the knife as a souvenir and invited the judge to regard the commission of the offence as “strange”, given that the applicant could not have hoped to get away with the offence.  Mr McNamara acknowledged that there were two aggravating factors in the commission of the offence of robbery.  First, that the applicant had brandished a knife and secondly, that the premises were a currency exchange shop.

Sentence

6.In sentencing the applicant, the judge rejected the claim that the applicant had purchased the knife for a lawful purpose and found that “he purchased a knife with the intention to use it in the robbery.” ^[1]

7.In determining the appropriate starting point for sentence, the judge said:^[2]

“ The seminal sentencing guideline case for armed robbery is Mo Kwong-sang v R [1981] 1 HKLR 610. The Court of Appeal suggests various levels of terms of imprisonment depending on the factors that are present that aggravate the offence.

The Court made it clear that the guidelines were applicable to cases where knives and other dangerous weapons were used but not to firearms for which severer sentences would normally be imposed.  The Court went on to explain that the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be in the range of five years’ imprisonment.  The Court said that six years’ imprisonment would be appropriate if the robbery involved an invasion of private premises, including business premises, and that seven years’ imprisonment should be considered if any physical violence is used on any of the victims, such as tying them up.  The Court also emphasised that the suggested sentences should be increased if there are any other aggravating factors.” 

8.Having regard to the circumstances in which the applicant committed this offence, the judge said:^[3]

“ … the following factors are relevant to the seriousness of the armed robbery involved.

(1) The defendant was a visitor to Hong Kong who committed the robbery within 24 hours of his arrival. HKSAR v Obiagwu [2011] 1 HKC 453, at paragraph 14.

(2) The defendant had targeted a vulnerable business, a foreign exchange shop, which would be known or expected to have large amounts of cash on the premises. Thedefendanthadattendedtheshop the previous day. HKSAR v Yiu Chi Ming,CACC 472/2011, unreported, at paragraph 65; HKSAR v Anees Khiyam,CACC 326/2013, 11 December 2013, unreported, at paragraphs 8 and 9.

(3) The foreign exchange shop was located in commercial and public premises at Hong Kong International Airport.

(4) The defendant had purchased a knife on the day of the robbery which I find was purchased with the intention to commit the armed robbery. The defendant wore a red cap and had with him gloves and a surgical mask. It would appear he wore the red cap in order to conceal his identity. The robbery was thought out and planned.

(5) The defendant robbed the shop which was attended to by a lone female.

(6) The defendant was armed with a knife which he used to threaten the female shopkeeper. The defendant also used physical violence on the female shopkeeper who sustained minor injuries. The female shopkeeper’s safety and life were put in danger.

(7) The defendant stole a large sum of cash, $58,220.

(8) In an attempt to escape, the defendant armed with the knife terrorised taxi drivers in order to take him away from the scene.”

Starting point

9.Then, the judge stipulated a starting point for sentence of 8 years’ imprisonment.^[4]

Discount

10.Having said that he afforded the applicant a discount of one‑third from that taken as the starting point, to reflect the fact of his plea of guilty at the earliest opportunity, the judge imposed a sentence of 5 years and 4 months’ imprisonment on the applicant.^[5]

Grounds of appeal against conviction

11.In Form XI by which he gave notice of his application for leave to appeal against sentence, the applicant contended simply that the sentence was “unprecedented, too harsh and excessive”.  In his oral submissions, the applicant asserted that he had not intended to commit the robbery.  Rather it was an imitation robbery. He had committed the offence in a “middle‑aged crisis.”  He submitted that the sentence imposed on him was excessive, and that “precedent cases” suggested that the appropriate range of sentence was between 6 and 7 years’ imprisonment.

The respondent’s submissions

12.For the respondent, Ms Claudia Ng submitted that the judge had correctly identified the factors relevant to a determination of the starting point for sentence, in particular that the robbery involved the invasion of business premises in which a knife had been brandished at the victim who had also been subjected to physical violence.  In those circumstances, the appropriate starting point for sentence was 7 years’ imprisonment.

Additional aggravating factors

13.Ms Ng submitted that the judge was correct to have regard to additional aggravating factors in determining the ultimate starting point for sentence.  First, that the applicant had chosen to commit the offence in a currency exchange shop, in which it was to be expected that there would be a large amount of cash.  Such premises were akin to a bank or a jewellery shop.^[6]  Secondly, the offence had been committed theday after the applicant had arrived in Hong Kong.  Thirdly, the judge was entitled to find that the applicant had purchased the knife in order to commit the robbery.

A consideration of the submissions

14.On any view, Ms Tse had been subjected to a terrifying and traumatic experience.  Her attempts to flee from the applicant were thwarted, her neck was placed in an arm lock and a knife brandished at her.  The knife, manufactured by the well-known German manufacturer Zwilling, is a substantial knife with an overall length of between 10 to 12 inches.  The judge’s finding that the applicant had bought the knife for the purposes of committing the robbery is a serious factor in aggravation of the offence.  There is nothing whatsoever about the knife that suggests that it might be regarded as a souvenir.

15.Clearly, the applicant had deliberately targeted the premises to be the subject of his robbery and no doubt anticipated, correctly, that there would be a significant amount of cash on the premises.  In that respect, such premises have a lot in common with banks in that they offer great temptation to robbers and those who work on such premises are vulnerable to this kind of attack.  That conduct was also a factor in aggravation of the commission of the offence.

16.The fact that the applicant committed the offence on the day after he arrived in Hong Kong is also a factor in aggravation of the commission of the offence.^[7]  It was a gross abuse of Hong Kong’s hospitality in allowing the applicant to enter and stay in Hong Kong.

Conclusion

17.In the result, I am satisfied that there are no reasonably arguable grounds of appeal that the judge erred in stipulating a starting point for sentence of 8 years’ imprisonment and the resulting sentence of 5 years and 4 months’ imprisonment imposed on the applicant.

18.The applicant is advised that he has the right to renew his application for leave to appeal against sentence to the Full Court, but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.

Ms Claudia Ng, SPP, of the Department of Justice, for the respondent

The applicant appeared in person