R. v. Sun Sheung Chung
Read the full judgment text of CACC 152/1993 on BabelCite. This Court of Appeal judgment was delivered on 15 October 1993 before Sir T.L. Yang CJ, Bokhary JA, Bewley J.
Criminal law – sentence – robbery – application for leave to appeal against sentence – whether sentence manifestly excessive – guidelines in MO Kwong-sang v R [1981] HKLR 610 – starting point of nine years' imprisonment for robbery – taking of bank account-operating material as element of aggravation – additional punishment warranted – applicant pleaded guilty to one count of theft and one count of robbery in High Court before Deputy Judge Chan on 1 April 1993 – theft involved insertion of bamboo pole through window into victim's home to extract $16,400 in cash and a gold ring valued at $200 contained in a leather waist wallet – robbery involved masked man armed with chopper standing over sleeping woman in her bedroom in early hours of morning – terrifying experience for victim – property taken from victim included gold necklace, two gold rings, gold bracelet and $430 in cash – applicant also took victim's bank cash withdrawal card and later attempted unsuccessfully to extract money from her account – before leaving, applicant tied victim to chair and covered her with quilt – sentencing outcome: seven years' imprisonment for robbery with starting point of nine years; one year for theft with half (six months) consecutive to robbery sentence; total sentence of seven and a half years' imprisonment – grounds of appeal: (1) trial judge failed to apply MO Kwong-sang guidelines when adopting starting point of nine years; (2) seven years for robbery was excessive – under MO Kwong-sang seven years should be considered on conviction after not-guilty plea for armed invasion of private premises with physical violence; (3) total sentence of seven and a half years was excessive – court noted that but for bank account feature, sentence might have been liable for reduction under MO Kwong-sang guidelines – bank account feature increases potential loss to victim, increases potential gain to criminal, heightens sense of violation suffered by victim, and extends period and scope of criminal activity – court issued warning to malefactors that bank account feature is considerable element of aggravation and will attract additional punishment, with warning to become firmer over time if this sort of thing continues unabated – sentence passed by trial judge not one moment too long – application for leave to appeal against sentence dismissed.
Legal issues: Whether leave to appeal against sentence should be granted
Outcome: Application for leave to appeal against sentence dismissed.
Cited by 8 cases · Cites 1 case
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CACC000152/1993 1993, No. 152 H E A D N O T E The taking of bank account-operating material along with other property from a robbery victim is a considerable element of aggravation calling for additional punishment. IN THE COURT OF APPEAL 1993, No. 152 ____________
____________ Coram: Sir T.L. Yang, CJ, Bokhary JA & Bewley J Date of hearing: 15 October 1993 Date of judgment: 15 October 1993 _______________ J U D G M E N T _______________ Bokhary, JA (giving the judgment of the Court): 1. This is an application for leave to appeal against sentence. 2. On April 1 this year, before Deputy Judge Chan in the High Court, this applicant pleaded guilty to one count of theft and one count of robbery. He was on the same day sentenced to one years' imprisonment for the theft and seven years' imprisonment for the robbery. Half of the theft sentence was made consecutive to the robbery sentence. The result therefore was a total sentence of seven and a half years' imprisonment. 3. The learned judge had adopted a starting point of nine years' imprisonment for the robbery. 4. Turning to the circumstances of the offences, they are these. The theft involved the insertion of a bamboo pole through a window into the victim's home and the extraction by means of that implement of property in the form of $16,400 in cash and a gold ring valued at $200 all contained in a leather waist wallet. 5. The robbery was far more serious. A woman, the victim, awoke in the early hours of the morning to find a masked man standing over her bed, armed with a chopper. There is no need to expand upon how terrifying that experience must have been for her. The facts speak from themselves. The masked man armed with a chopper was this applicant. A gold necklace, two gold rings and a gold bracelet as well as $430 in cash were taken from this unfortunate woman. It did not stop there. The applicant also took her bank cash withdrawal card, with which he later attempted, albeit without success, to extract money from her account. She was, before he parted company with her, tied to a chair and covered with a quilt. 6. The grounds of appeal against sentence have been drafted with commendable clarity and concision by Mr Percy for the applicant, and his able arguments have followed them accurately and closely. We propose therefore to recite those grounds. They read:-
7. Leaving aside the feature to which we will come in a moment, the sentence in the present case might be liable to reduction as being significantly and unjustifiably in excess of the result to be arrived at by an application of the guidelines laid down in the case mentioned in the first ground of appeal, which we have quoted. 8. The feature to which we now come is this. There was, as we have noted, the taking from the victim of her bank cash withdrawal card. Where bank account-operating material is extracted along with other property, then this is the position. First, the potential for loss of the victim is increased, possibly very considerably. Secondly, the potential for gain to the criminal is correspondingly increased. Thirdly, the sense of violation suffered by the victim is, it is not difficult to imagine, heightened. And, fourthly, the period and scope of the criminal activity involved is extended. 9. This "bank account" feature, as we will term it, is appearing with mounting and alarming frequency in robbery offences against householders and others. The time has come to warn malefactors - and this warning will become more and more firm as time passes if this sort of things continues unabated. Such a feature is a considerable element of aggravation; and it will attract additional punishment as a result. 10. In the circumstances, the sentence passed by the learned judge cannot be interfered with, because it was not one moment too long. The application for leave to appeal is dismissed.
Representation: Mr Duncan Percy (instructed by the Director of Legal Aid for the applicant Mr K. Zervos (of the Attorney General's Chambers) for the Crown |
Cases cited in this judgment