HKSAR v. Limbu Jun Kang (also known as Chan King Tung)

CACC 55/2019

[2019] HKCA 1295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 55 OF 2019

(ON APPEAL FROM HCCC NO 159 OF 2018)

_______________

_______________

Before: Hon Zervos JA in Court

Date of Hearing:  19 November 2019

Date of Judgment:  19 November 2019

________________

J U D G M E N T

________________

Introduction

1.The applicant pleaded guilty in the Magistrate’s Court to two counts of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.  He was committed for sentence to the Court of First Instance and appeared before Deputy High Court Judge Bruce (the judge) on 6 August 2018.  The judge adjourned sentencing to 24 December 2018, which he further adjourned to 2 January 2019, when he sentenced the applicant to a total of 4 years and 9 months’ imprisonment.

2.On 19 February 2019, the applicant filed an application for leave to appeal against his sentence out of time.  The applicant applied for legal aid which was refused on 10 April 2019.

3.The application is several weeks out of time, and the applicant’s explanation for the delay is because he learnt that a similar sentence to the one that he received was passed in another case which was far more serious than his case.  Hence, his sentence was too harsh.  The length of the delay is not great and I will proceed to consider the leave application.  See HKSAR v Bangoura Charles, unreported, CACC 281/2016; R v Wong Kai Kong [1990] 1 HKC 279.

The brief facts

4.The applicant admitted that he committed two robberies in the nightclub district of Lan Kwai Fong on 12 and 17 November 2017, respectively.[1] He would lay in wait in the early hours of the morning at this locality and target potential victims who appeared to be inebriated in order to assault and rob them. 

5.The first robbery occurred at around 2:20 am when the victim, a male, had been drinking in a club and felt he was drunk.  He left the club to go home and was obviously unsteady on his feet.  The applicant purported to assist him but walked him into a rear lane where he started to beat him violently.  He threatened the victim not to make a noise and demanded the victim to give him his money.  The victim handed over his wallet and he took $1,300 from it.  He however continued to assault the victim before he left.  The victim fell to the ground unconscious and was discovered later by a police patrol.  The victim was taken to hospital, having sustained numerous injuries around the head.  He was hospitalised for three days.

6.The second robbery occurred around 4:30 am when the victim, a male, had left a group of friends in a nearby restaurant to go to the toilet as he was not feeling well.  On his return, the applicant suddenly appeared and grabbed the victim by the neck, assaulting and dragging him into a rear lane.  He repeatedly bashed the victim around his head and demanded money from him.  The victim handed over $420 to the applicant.  After taking the money, the applicant smashed an empty beer bottle over the victim’s head and kicked his head several times before he fled.  A report was made to the police and the victim was sent to the hospital for treatment.  He had a laceration over the left scalp, bruises to his left eye and a right frontal brain contusion.

7.A police operation was mounted on 18 November 2017, which resulted in the apprehension of the applicant who admitted he had committed the two offences when cautioned by the police.  CCTV footages from various locations depicted the applicant together with the respective victims at the material times.  They show the applicant beating and robbing the respective victims.

The mitigation

8.A lengthy submission was made on behalf of the applicant in mitigation.[2] It was noted that he was born in Hong Kong in July 1992.  He was an ethnic Chinese who had adopted the Nepalese name of “Limbu.”  It was submitted that it was suspected that since the age of 12, the applicant suffered from attention deficit hyperactivity disorder but it was not until 2012 that he was diagnosed as suffering from mental illness.  Various medical and background reports were submitted to the court on 24 December 2018, setting out his medical condition and the treatment he had received, as well as his personal circumstances and background.

9.The applicant had a prior conviction for common assault in August 2009, for which he was ordered to attend a rehabilitation centre and for indecent assault in March 2017, for which he received a term of imprisonment of 4 months.[3]

The sentence

10.The judge in his very comprehensive reasons for sentence describes the circumstances of each offence and the injuries suffered by each victim and the impact the offence had had on them.[4]  He also addresses in great detail the background and circumstances of the medical condition of the applicant, noting that he is considered to be a person suffering from a developmental disorder with limited intelligence and autistic spectral disorder.  The judge reviewed the mitigation and identified the relevant sentencing principles, highlighting that there was a compelling public interest in the deterrence of a robbery with violence.  He noted that the violence used and the injuries sustained by the victims in both robberies was substantial, and that the robberies took place at night with the applicant targeting potential victims, particularly someone who was in a state of intoxication and less likely to be able to resist a robbery.  He concluded that given the distinct circumstances of each robbery, they should be sentenced separately with a consecutive element, subject to the totality principle.

11.The judge adopted a starting point of 5 years’ imprisonment on the first robbery and 6 years’ imprisonment on the second robbery.  The judge recognised that the applicant was entitled to a one third discount to his sentences for his guilty pleas which he increased to a 40% discount for what appears to be in recognition of his medical and personal circumstances.  This resulted in a sentence of 3 years’ imprisonment for the first robbery and 3 years and 7 months’ imprisonment for the second robbery. Taking into account the totality principle, he ordered that 21 months of the sentence for the second robbery to run consecutively to the sentence for the first robbery.  This resulted in a total sentence of 4 years and 9 months’ imprisonment.

The basis of the leave application

12.The applicant in his home-made grounds of appeal complains that his total sentence is excessive.[5] He states that he was prompted to appeal his sentence because of a similar sentence passed in another case far more serious than his, namely HKSAR v Shao Hung, HCCC 229/2018, 31 January 2019, which was dealt with by the same judge.  In that case, the defendant stalked the victim, a young mother, and attacked her when she was walking alone down the stairs of her residential building.  He dragged her into the fire escape and produced a 7-inch knife.  He repeatedly stabbed and beat the victim as she struggled with him.  At one stage, he used the knife to cut her neck and mimicked that he would cut her throat.  He took the victim’s rucksack and her valuables inside.  The victim managed to get away down the stairs but the defendant grabbed her again and tried to take her back into the fire escape, pulling her hair and beating her head against the wall.  However, she was able to break free and raise the alarm of the attack on her.  The judge described this case as “a frightening and violent and traumatic robbery.”    He adopted a starting point of 8 years’ imprisonment which he reduced for the defendant’s guilty plea to 5 years’ imprisonment.

13.I must say, I am somewhat surprised by the limitation of the charge and the level of sentence in that case, which on what was known should have been visited by far more serious offences and a much higher sentence.  See the observations of a division of this Court in HKSAR v Singh Gursevak [2019] 2 HKLRD 274, where it was said that the violence inflicted upon the victim in that case was far more than was usually encountered in a robbery and should have been the subject of a separate charge for which consecutive sentences should have been imposed.

14.The applicant also prays in aid his mental illness which he says has affected his judgement and behaviour.[6]  He claims that he was agitated by some comments from the victim that he believed were directed to him which were hurtful and because he was affected by alcohol at the time he became emotional and irrational.  He seems to be suggesting that this prompted him to commit the robberies.  He argues that the pecuniary loss suffered by the victims was not great and could have been dealt with by offences of assault instead.  He complains that the sentences imposed on him were too heavy because he was suffering from a mental illness.

The rejection of the leave application

15.I have no hesitation in rejecting the applicant’s leave application against his sentence.  His overall complaint that the total sentence was excessive is not reasonably arguable.  He was given a very generous discount in addition to the one third discount for his guilty pleas for his particular circumstances and mental state.  He is fortunate that his sentence was not considerably greater.  The circumstances of these robberies involve substantial violence, taking place in the early hours of the morning, targeting victims who appeared to be inebriated and unlikely to put up much resistance if attacked.  The violence inflicted on the victims was not only substantial but also gratuitous, in that the violence continued after the victims had handed over the money demanded from them.  See Mo Kwong Sang v R [1981] HKLR 610; and HKSAR v Yang Xingyun, unreported, CACC 155/2016, at paragraph 23.

16.The reliance by the applicant on the case of Shao Hung does not provide any basis to interfere with his sentence.  When an appellate court assesses the appropriateness of a sentence seldom is there any utility by comparing sentences in other cases.  Experience reveals that cases will vary for one reason or another.  The issue for an appellate court is whether a fair and just sentence was passed in the circumstances of the case applying the relevant sentencing principles and guidelines. 

17.I find that there is no cause for complaint by the applicant of the sentence that was imposed on him for these two offences. He should consider himself fortunate that the overall sentence was not greater.

18.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Felix Tam, SPP, of the Department of Justice, for the respondent

The applicant appeared in person

[1] Appeal Bundle, pp 4 – 8. 

[2] Appeal Bundle, pp 24 – 68.

[3] Appeal Bundle, p 69.

[4] Appeal Bundle, pp 9 – 23.

[5] Notice of Application for Leave to Appeal Against Sentence Out of Time (Form XI) dated 19 February 2019.

[6] Affirmation of the applicant dated 8 August 2019.