HKSAR v. Wong Hiu Man

CACC000163/2001

CACC 163/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 163 OF 2001

(ON APPEAL FROM HCCC 67 OF 2001)

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Coram: Hon Stuart-Moore VP and Stock JA

Date of Hearing: 11 October 2001

Date of Judgment: 11 October 2001

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.On 20 April 2001, the Applicant confirmed in the Court of First Instance before Nguyen J the pleas of guilty he had entered in the Magistrates' Court to three charges. Charges 1 and 3 related to section 19 wounding offences brought under the Offences Against the Person Ordinance, Cap. 212. Charge 2 alleged a robbery. All these offences were committed on 9 December 2000. The Applicant was sentenced on charge 2 to five years and four months' imprisonment. He was given a concurrent sentence of sixteen months on charge 1 but a consecutive sentence of twelve months on charge 3, making six years and four months in all.

2.The Applicant now seeks leave to appeal against his sentence.

Prosecution's case

3.The facts were uncomplicated. The robbery victim named in charge 2 was a 54-year-old bus driver who had just finished work. He was returning to his home on the Choi Wan Estate at 1.08 a.m. He was holding a bag which contained some personal items. When he was on the ground floor of Pak Hung House where he lived, the Applicant appeared and declared robbery. He then grabbed the strap of the bag the victim was carrying. The victim struggled to keep possession of the bag.

4.After a short time, the Applicant let go of the bag and took out a machete from a case that he was carrying. This was quite a lengthy weapon which we have seen in court today. Using the machete, he then chopped the back of the victim's head once, causing a laceration of 5 centimetres. The victim was later admitted to hospital for one day in order to receive treatment. It was established that he had not suffered any fracture or intra-cranial haemorrhage.

5.Continuing with the events of the night when the robbery occurred, the Applicant then attempted to deliver two more blows to the victim which he was fortunately able to avoid by staggering backwards. We pause here to say that we consider this to have been a considerably aggravating factor. The Applicant then ran towards Old Clearwater Bay Road with the victim's bag. The victim, despite what had happened to him, pursued the Applicant shouting out "Robbery". He was then assisted in the chase by three other persons.

6.In Old Clearwater Bay Road, the Applicant boarded a taxi which was being driven by the victim named in charge 3. The Applicant told the driver to drive off immediately, but the driver was unable to do so because there were other vehicles in front of him and, in addition to that, one of the pursuing bystanders had positioned himself in front of the taxi.

7.The Applicant then threatened the driver with the machete by pointing it at the driver's neck. Again, the Applicant demanded that the driver should drive away and at that stage he cut the left side of the driver's face with the machete. This was not a serious cut. The taxi driver then grabbed the Applicant's hand and also the machete and struggled with him. During the course of the struggle, not surprisingly all of his fingers were cut on the left hand. The Applicant then dropped the knife and ran from the taxi. He was pursued by the various bystanders who had in a very public-spirited way come to the assistance of the victim of the robbery. One of them apprehended the Applicant. Police arrived shortly afterwards. The Applicant admitted having gone out to rob saying that this was because he was short of money. Later, he also went on to say that he had consumed some "ice" and "pills" during the afternoon of the day before.

8.The taxi driver's injuries were described as a 3-centimetre "abrasion wound" over his face on the left side and laceration wounds over all of his left fingers and thumb on the palm side of the hand.

9.Having reviewed the facts, the judge went on to give full credit for the Applicant's timely pleas. He considered that there was no other relevant mitigation of any weight.

10.The judge noted that the Applicant had acquired seven previous convictions. In passing, we can add that these were mainly drug-related although two of his past offences included assaults. The judge also dealt with an aspect of mitigation to which, because it has been emphasised again in these proceedings, we should refer. He said:

"Your counsel, Mr Chong, has submitted to me that this is not the usual head-bashing case because he says that the usual head-bashing case is where the culprit hits the head of the victim from the back with a heavy object, such as a brick or a piece of wood, with a view to incapacitating the victim to enable the culprit to rob the victim. Your counsel submits, therefore, that because this is not a head-bashing case, I should not follow the guideline laid down by the Court of Appeal in Secretary for Justice v Ma Ping Wah, Application for Review No. 1 of 2000, where the Court of Appeal laid down a guideline of 8 years' imprisonment for head-bashing cases.

There was, in that case, no definition of what a head-bashing case is, but Stuart-Moore VP, in giving the judgment of the court, said this about head-bashing cases:

'Where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or the culprit who is intent on robbery....'

In my view, even though this was not the usual head-bashing case, it very much falls within what the Court of Appeal in Ma Ping Wah contemplated when they laid down the guideline of not less than 8 years' imprisonment." (Tr. p. 9)

The Application

11.Mr Christopher Coghlan, who now appears on behalf of the Applicant, has raised what are effectively two grounds of appeal. In the first ground, he submitted that the judge had passed an excessive sentence on the charge of robbery because he had erroneously treated that offence as being a so-called "head-bashing" case. In the second ground, he submitted that the judge had failed to apply the totality principle adequately. His overall submission was that the judge had imposed a sentence which was manifestly excessive.

12.In respect of the first ground, in the order taken by Mr Coghlan, we should perhaps put into a further context the short citation taken by the judge from The Secretary for Justice v Ma Ping-wah [2000] 2 HKLRD 312 at 320. This Court said:

"It seems to us a matter of the most straightforward common sense that where a robber deliberately sets about his victim by striking a blow or, as in this case, blows to the victim's head with a weapon which is capable of causing brain injury, this will be an aggravating factor. It is a particularly dangerous act.

However, in view of the evidence with which we have been provided, whilst we do not consider that any general changes need to be made to the Mo Kwong-sang v R [1981] HKLR 610 guidelines, we are satisfied that head bashing robberies are in a category of sufficient gravity to justify a particular band of guideline sentence which was not contemplated at the time when judgment was given in that case. In our judgment, the usual sentence to be imposed for such robberies, following a contested trial, where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or the culprit who is intent on robbery, should not be less than eight years' imprisonment. This is not, of course, a strait-jacket, and there may be some offences where a lesser penalty can be imposed depending on all of the circumstances. Equally, depending on how severely the victim is injured, there will be other cases for which greatly increased sentences will be required. In the light of this conclusion, prosecutors responsible for the preparation of such offences would be well advised to give careful consideration for the probable need to transfer future 'head bashing' robberies for trial in the High Court."

13.Whilst the circumstances we were addressing in Ma Ping-wah were not entirely the same as those with which the sentencing judge in the present case was concerned, that being said, a sentencer under the Mo Kwong-sang guidelines is nonetheless bound to have regard to the use of violence in a robbery where a weapon has been used because this would normally attract a sentence in the region of seven years. Regard has obviously to be had to the nature of the weapon, the degree of violence and the nature of the injury.

14.We have seen the weapon used in this case. It is a sharp and large machete. We have also seen a photograph of the injury which was occasioned by it. We notice, too, that there was not merely one blow to the head but, under the admitted facts, there were two further attempted blows. This was also an offence on a lone individual arriving at his home in the dark during the early hours of the morning. When all of this is digested, it reveals a serious offence of its kind. An eight-year starting point on these facts cannot, in our view, be classified as either manifestly excessive or wrong in principle.

15.As to totality, the judge rightly observed that charges 1 and 2 were deserving of concurrent sentences. The third charge, however, was separate. In reality, it was not part and parcel, as Mr Coghlan had sought to argue, of the other offences. In the circumstances, we consider the judge to have been justified in ordering this sentence to run wholly consecutively.

Conclusion

16.In our opinion, the overall sentence received by the Applicant was fully merited.

17.The Application is dismissed.

18.We would like to add that Mr Coghlan's submissions gave us very considerable food for thought. It was a model of its kind.

Representation:

Ms Winsome Chan, SGC, of the Department of Justice, for the Respondent.

Mr Christopher Coghlan, instructed by the Director of Legal Aid, for the Applicant.