HKSAR v. Cheung Hon Yuen

CACC 15/2018

[2018] HKCA 677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 15 OF 2018

(ON APPEAL FROM HCCC 185 OF 1989)

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Before:  Hon McWalters and Pang JJA in Court

Date of Hearing:  12 September 2018

Date of Judgment:  12 September 2018

Date of Reasons for Judgment:  8 October 2018

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R E A S O N S   F O R   J U D G M E N T

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

1.The applicant was convicted on his own plea to two counts of ‘robbery’, both of which were committed in 1988, and was sentenced by Toh J (“the judge”) to a total of 9 years and 4 months’ imprisonment.  He sought leave to appeal against that sentence, which application we dismissed after hearing submissions.  These are our reasons.

THE TWO ROBBERIES

2.The first robbery took place in the early morning of 29 March 1988.  Mr Tam, who sold fish for a living, was about to drive to work when two men approached his lorry from behind, smashed the windows on both sides, got on board and pointed their butcher’s knives at Mr Tam.  One of the men then snatched Mr Tam’s necklace and watch.  Respectively, they were worth $4,000 and $4,600 at the time.  The same man also snatched Mr Tam’s money bag which contained $4,600 in cash.  At knife point, Mr Tam was driven to a construction site where he was tied and had his head covered with a piece of clothing; and he was pushed onto the floor of the lorry before the men made off.  As a result of the robbery, Mr Tam suffered superficial injuries for which no medical attention was required.

3.The second robbery took place in the evening of 15 May 1988.  Ms Kong, a snack shop owner, was making her way up the stairs of the building in which her home was located.  There, she was stopped by a man who declared “robbery” and threatened to stab her to death if she made any noises.  Ms Kong was then forced onto her knees with a curve-shaped knife placed on the floor beside her, at which point the man snatched her bag and ran away with the $20,000 cash in it.  Whilst this was taking place, a nearby witness heard someone shout “robbery” and saw two men getting into a car with two other persons already on board.

ARREST & CONFESSION

4.On 5 February 1989, the applicant was arrested by the police at a police roadblock.  Under caution, he admitted to having committed the above two robberies with an overlapping as opposed to identical combination of four men: CHAN, LAW, LAU and TANG.  He admitted knowledge that knives would be used in those robberies.  His role, he said, was the driver of the get-away car in both.

ABSCONDING & RE-ARREST

5.The applicant was given bail but failed to turn up for his trial, then scheduled to commence on 10 August 1989.  He did not surrender himself to the authorities until almost 28 years later, on 31 May 2017, when he presented himself at Tai Po Police Station.  Prior to that, he was all along living in hiding within the jurisdiction.

THE SENTENCE

6.The applicant was aged 24 and of hitherto clear record when he committed the present offences.  With just a Primary 6 education and an apprenticeship as a garage-hand, he was said to have been led astray by associates whom he had met at work.  It was conceded, however, that he did have a share of the crimes’ proceeds.

7.Having heard mitigation, the judge acknowledged that whilst living in hiding, the applicant must have undergone a substantial degree of hardship, but dismissed it as something entirely of the applicant’s own doing.  Then, referring to the case of Mo Kwong Sang v The Queen [1981] HKLR 610, and the guidelines it provides for sentencing armed robberies, the judge pronounced :[1]

“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.”

GROUNDS OF APPEAL

8.Having been refused legal aid, hence acting in person, the applicant raised three home-made grounds of appeal vide his letter dated 12 June 2018 :

(1)  Not only were his co-defendants given lighter sentences, but all their sentences were ordered to run wholly concurrently.

(2)  For his voluntary surrender and subsequent plea of guilty in 2018, he should have been given the full one-third discount in sentence.

(3)  In HCCC 405 of 2017, involving four counts of robbery that were in many aspects more serious, the defendant was only sentenced to a total term of 7 years’ imprisonment after plea.

9.Prior to the above, in his Notice of Application for Leave to Appeal or Form XI, the applicant had made the general complaint that his sentence was excessive.

DISCUSSION

10.The applicant’s grounds of appeal are misplaced and can be swiftly dealt with as follows.

11.Although sketchy in information, the Respondent managed to retrieve the case report concerning the applicant’s co-defendants.  At the very least, the report shows :

CHAN, LAW and LAU all faced multiple counts, five in the case of CHAN and three in the cases of LAW and LAU.

The prosecution offered no evidence to two of CHAN’s charges.  For pleading guilty to the rest of his charges and testifying against the others, CHAN was given a 50% discount in sentence, which resulted in three concurrent terms of 8 years’ imprisonment.

LAW was convicted after trial and, to match his charges, he was sentenced to three separate terms of 7, 8 and 12 years’ imprisonment.  It is not clear from the report if these sentences were ordered to run wholly or partly concurrently or at all.

The prosecution offered no evidence to one of LAU’s charges. Convicted of his two remaining charges after trial, LAU was sentenced to the concurrent terms of 7 and 11 years’ imprisonment.

TANG absconded and was never re-arrested.

It is therefore not accurate that the applicant’s co-defendants were given more lenient sentences, or that their sentences were all ordered to be concurrent.  They were obviously sentenced according to the nature and seriousness of each of their offences with due regard to the totality principle.

12.It was not a sentencing principle prevailing at the time of the applicant’s offences that a timely plea must be met by a full one-third discount.  That did not become settled law until the case of HKSAR v Yeung Kin Man [2000] 2 HKLRD 821 (see HKSAR v Lo Chi Yip [2000] 3 HKLRD 270).  Now as before, this sentencing principle is also almost always moderated by acts of absconding which necessarily impact on court time and resources (see HKSAR v Lo Kam Fai [2016] 2 HKLRD 308) so there is little if any value in mitigation that a defendant has re-surrendered himself after a period of escape.  The applicant can have no complaints in receiving just a 20% discount for turning himself in and pleading guilty.

13.Out of caution, we have read the facts pertaining to HCCC 405 of 2017.  It is correct that, for using a knife to rob in the country park a number of female hikers on four occasions within two months, the defendant who pleaded guilty at the first opportunity was sentenced to a total of 7 years’ imprisonment. However, whether or not this case gives the applicant the impression that his was a heavier sentence, that is not a valid ground of appeal.  The true test in such a situation is, whether within the factual matrix of the applicant’s case itself, the applicant has been correctly sentenced.  As a basis of appeal, the parity principle does not embrace unrelated criminal conduct and “is confined in its application to co-offenders” (see Sentencing in Hong Kong, 8^th Edition, page 248, quoting HKSAR v Ng Man Yee [2014] 4 HKC 241, 254).  Having reviewed the facts of this case, we do not find the applicant’s sentence to be either wrong in principle or manifestly excessive.

CONCLUSION

14.For the above reasons, we refused the applicant leave and dismissed his appeal against sentence.

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

Applicant in person, being present