HKSAR v. Yang Chao

[English Translation – 英譯本]

CACC 397/2017

[2018] HKCA 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 397 OF 2017

(ON APPEAL FROM HCCC NO. 291 OF 2017)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the reasons for judgment of the Court):

I.   Leave to appeal against sentence

1.1The applicant was charged with 2 counts of “robbery”, contrary to s.10 of the Theft Ordinance, Cap.210 (Charges 1 and 2), and 1 count of “forcible taking or detention of persons to procure a ransom” (kidnapping) contrary to s.42 of the Offences against the Person Ordinance, Cap.212 (Charge 3).

1.2The applicant pleaded guilty to all three charges in committal proceedings and was sentenced to 11 years' imprisonment by Yau J on 4 December 2017. For Charges 1 and 2, Yau J adopted 8 years’ imprisonment as the starting point. The applicant was entitled to a one-third discount on the sentence by reason of his guilty plea. He was sentenced to 5 years and 4 months’ imprisonment respectively.  For Charge 3, Yau J adopted 15 years as the starting point for charge 3, after applying a one-third discount for a guilty plea, the sentence imposed was 10 years’ imprisonment.  Yau J ordered the sentences of Charges 1 and 3 to run concurrently and 1 year on Charge 2 to run consecutively to the other sentences, making a total sentence of 11 years’ imprisonment.  The overall sentence of this case would run consecutively with the 15 months’ imprisonment imposed in a previous case of “illegal remaining”.  The applicant has to serve a total sentence of 12 years and 3 months including the sentence for “illegal remaining”.

1.3The applicant applied for leave to appeal against sentence.  Having heard the application, this Court dismissed the application and now hands down the reasons for judgment.

II.   Facts of the case

2.1The prosecution case was that the applicant was an illegal immigrant.  He, together with two other illegal immigrants, broke into a house in Tseung Kwan O two days after their arrival in Hong Kong.  They threatened the couple of the house and their domestic helper with knives.

2.2The applicant and his accomplices first robbed the couple of their valuables including HK$10,500, RMB7,000, AUD4,500, a mobile phone of around HK$6,000 in value, accessories of around HK$80,000 in value and a rucksack of around HK$1,600 in value. Subsequently, the applicant and his accomplices forced the couple to leave the house and instructed the wife to drive the whole group to Ah Kung Wan Road in Sai Kung.  The applicant’s accomplices then forced the husband to alight from the car and waited at the hillside while the applicant forced the wife to drive to a nearby shopping mall to buy gold ornaments of HK$261,167 in value and 6 packets of cigarettes, and to withdraw HK$20,000 from an ATM.  All items were handed to the applicant. When the applicant went back to Ah Kung Wan Road with the wife, the police had set up roadblocks (as the couple’s domestic helper had made a report), and intercepted the vehicle of the wife and arrested the applicant.  Later, the police located the husband at Ah Kung Wan Road but the two accomplices who held him hostage had fled.  The couple suffered no injury, however stolen property of a value of HK$100,000-odd remained unrecovered.

III.   Grounds of Appeal

3.1The applicant was 28 years old when he was sentenced.  He was a native of the mountainous regions of Guizhou. His family consisted of his parents, his wife and 2 young sons. He said that his mother suffered from multiple illnesses and his father was an alcoholic; his wife and sons relied on his earnings as a construction worker. He claimed before Yau J that he came to Hong Kong illegally hoping to find a job to earn money to send home. Unfortunately, he was unable to find any job and was counselled by his native clansmen to commit the crime. The applicant told this court he assisted in the police investigation and participated in a case reconstruction.  He also supplied photos and contact numbers of his accomplices to the police. Given his guilty plea and his personal circumstances, he should have been given a greater discount in sentence.

3.2Regarding Charge 3, Yau J referred to HKSAR v ZHENG Xingwang [2017] 2 HKLRD 707.  The applicant submitted that ZHENG’s case was more serious in nature than the present case. Although Yau J agreed that the facts of this case were less serious than ZHENG’s, the total term of the sentence Yau J passed was heavier than the 12 years’ imprisonment in ZHENG’s case. The applicant also submitted that he committed the crimes on the same night and therefore, no part of the sentences should run consecutively.

IV.   The view of this Court

4.1Regarding Charges 1 and 2, according to Mo Kwong Sang v R [1981] 1 HKLR 610, if the armed robbery involves an invasion of private premises and physical violence, the appropriate starting point is 7 years of imprisonment.  The court should consider increasing the starting point if there are other aggravating factors present, such as an invasion of domestic premises during the night by multiple persons. The Court of Appeal pointed out in HKSAR v LAI Kam Tong & Anor [2005] 1 HKC 232 that premeditation and planning is also a serious aggravating factor.  Yau J adopted 8 years of imprisonment as the starting point for Charges 1 and 2 in light of these authorities.

4.2Regarding Charge 3, this court has reiterated on numerous occasions that kidnapping is a horrible crime; it causes the victim as well as his/her family harm, immense mental pressure and pain, fearing that he/she might be harmed. For this reason, the court must adopt a deterrent sentence: HKSAR v CHAN Kam fung & Anor[1995-2000] HKCLRT 236. The facts in ZHENG Xingwang’s case were more serious as it involved more sophisticated planning, a longer period of detention of the victim and a larger sum of ransom demanded.  There was evidence showing that the incident had a serious psychological impact on the victim. The starting point in that case was 18 years’ imprisonment. The applicant in that case faced only 1 count of “kidnapping” and was sentenced to 12 years’ imprisonment on a guilty plea. Yau J adopted a lower starting point of 15 years’ imprisonment in this case.

4.3This court is of the view that all three charges committed by the applicant were very serious offences, his modus operandi was obnoxious. The applicant acted together with others, engaged in detailed planning to enter Hong Kong illegally to commit crimes. The applicant’s role in this offence was no different from a mastermind. He participated in each and every single part of the crime, used weapons to threaten the victims, tied them up, held the husband hostage to force the wife to get more valuables before releasing the husband.  This court agrees with the starting points Yau J adopted.

4.4As to whether the applicant could be given any greater discount in sentence, this court is of the view that the assistance offered by the applicant to the authorities after his arrest and his participation in the case reconstruction do not justify a discount in sentence of more than one third. Although recently in HKSAR v LO Sze Tung Stephanie (CACC 190/2017), it was stated that if, on top of a guilty plea, a defendant has made a genuine attempt to assist the authorities, while her assistance could be helpful, if for some reason it is not assessed to be of particularly great value, he should still be entitled to an extra discount in sentence. Reviewing the case before us, the information provided by the applicant was vague and general and there were doubts as to whether it was a genuine attempt in assistance. In fact, he had failed to assist the authorities in the actual arrest of other related persons. Therefore, he should not be given any extra discount on this respect. Furthermore, there was nothing in the background of the applicant which justified a greater discount.

4.5Regarding the total sentence, this court agrees with the submission of Ms Samantha Chiu, Senior Public Prosecutor for the respondent, that robbery and kidnapping are offences of a different nature; therefore, even when both occurred on the same night, it was not wrong for the sentences of the two crimes to be served consecutively. Yau J’s order of only requiring 1 year to be served consecutively was appropriate.

4.6Apart from one count of “kidnapping”, the applicant of this case was also charged with 2 counts of “robbery”. The facts of the case showed that he was actively involved in all three charges, and the total sentence had to reflect the criminality of his commission of these serious crimes. This court considers that a sentence of 12 years and 3 months’ imprisonment (inclusive of “illegal remaining”) may have been on the heavy side but it was not wrong in principle nor manifestly excessive.

V.   Conclusion

5.This court dismissed the application for the above reasons.

The Applicant, unrepresented, in person.

Samantha CHIU, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.