HKSAR v. Tursen Chris

CACC 227/2021

[2022] HKCA 752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 227 OF 2021

(ON APPEAL FROM HCCC NO 141 OF 2021)

_______________

_______________

Before:  Hon Zervos JA in Court

Date of Hearing:  25 May 2022

Date of Judgment:  25 May 2022

________________

J U D G M E N T

________________

Introduction

1.The applicant pleaded guilty to two counts of robbery in the Magistrate’s Court and was committed to the Court of First Instance for sentence. On 26 August 2021, the sentencing hearing before Toh J (the Judge) was adjourned on the defence’s application for a psychiatric report, which subsequently confirmed that the applicant was fit to plead. On 16 September 2021, the Judge sentenced the applicant to 6 years and 8 months’ imprisonment on each count, with 2 years of the term in Count 2 ordered to run consecutively to that of Count 1, resulting in a total sentence of 8 years and 8 months’ imprisonment.

2.The two counts of robbery were very serious offences, involving him robbing lone female shop attendees with the use of force and violence. As revealed from the record, the applicant is a Russian national, who is 57 years of age. He has a long list of previous convictions for theft since 1994, which have culminated in offences for assault and wounding in 2016 for which he was ordered to attend Siu Lam Psychiatric Centre.

3.On 8 October 2021, the applicant applied for leave to appeal against conviction. He states that he has “no claim to the court” and that he was “punished according to the verdict”. He expresses his dissatisfaction with his legal representatives, complaining that they did not provide assistance in his case. He states he has sought to file “three claims” with the court, but only the third one was filed. He seems to be referring to a letter as he also states that the court “probably did not read the letter”. He seems to accept his conviction and sentence, although he states that “I can’t say that I committed the robbery with one hundred percent intent.”

4.It is unclear on what basis, if any, the applicant is seeking to challenge his convictions for two counts of robbery, having pleaded guilty to them.

The agreed facts

5.The agreed facts in respect of Count 1 are as follows. The offence took place in a fashion shop in Wong Tai Sin, where the victim was a 57-year-old female staff member of the shop. At about 6 pm on 4 February 2020, the applicant, wearing sunglasses, a black mask and black wig, entered the shop through the main entrance. He took out a pistol-like object from his jacket and pointed it at the right temple of the woman’s head. He declared “robbery”, demanded money, and ordered the woman to open the cashier’s drawer. He took away $900 cash. He then took out two plastic cable ties and tied the woman’s wrist and ankle and further ransacked the counter. He found and took $1,800 cash from the woman’s wallet in her handbag and then fled. After the applicant left, the woman shouted for help and a passer-by answered her call and helped untie her. She suffered no physical injury, although traumatised by the incident, and the case was reported to the police.

6.CCTV footage in the vicinity captured the applicant boarding a taxi at around 6:03 pm after fleeing from the shop. Enquiry with the taxi driver revealed that the applicant alighted the taxi at Kwai Chung Plaza around 6:20 pm where he entered a foreign exchange shop (as captured on CCTV footage of the shopping centre).

7.On further enquiry, a staff member of the foreign exchange shop confirmed that the applicant had remitted HK$2,795 to a bank account in Shenzhen.

8.The agreed facts in respect of Count 2 are as follows. The offence took place in a shoe shop in Kwai Chung Plaza in Kwai Fong, where the victim was a 41-year-old female owner of the shop. At around 2:40 pm on 7 February 2020, the woman was alone inside the shop. The applicant, wearing a black mask and black wig and carrying a rucksack, entered the shop and pointed a black pistol-like object at the woman’s forehead. He then pushed her into the storeroom and she surrendered the keys to the cashier counter. He took out two plastic cable ties from his rucksack and used them to tie the woman’s wrist and ankles. He also covered her mouth with adhesive tape. He then left the storeroom. The woman untied herself and came out from the storeroom. The applicant fled. The woman suffered no physical injury, but she too would have been seriously traumatised by the incident, and the case was reported to the police. The woman found that, amongst other things, she had lost Renminbi 18,000 and HK$5,000, her wallet, her Hong Kong Identity card, her travel permit for Hong Kong and Macau residents, three bank cards and two bank books

9.CCTV footage in the vicinity showed the applicant entering and leaving the shop. He is seen boarding a taxi after he left the shop. The taxi driver was located and he said he dropped the applicant off outside Luen Yat House in Kwai Luen Estate. CCTV of the Luen Yuet House captured the applicant entering the building at about 3 pm the same day.

10.On 8 February 2020, the police saw the applicant leaving Luen Yuet House with a black rubbish bag, which he discarded at a refuse collection point. The police recovered that rubbish bag from the rubbish bin. The applicant was arrested and remained silent under caution. The rubbish bag was opened in front of the applicant, which was found to contain a pistol-like airgun and, amongst other things, two packets of plastic cable ties, seven cable, a black big. The applicant’s DNA was subsequently confirmed to be on the seven plastic cable ties inside the rubbish bag.

Discussion

11.The applicant has not advanced any reasonably arguable grounds which warrants the granting of leave to appeal against conviction. The applicant was represented by experienced counsel in the proceedings below and, with the benefit of legal advice, he elected to plead guilty to the two robberies. He also agreed to a set of admitted facts which detailed the circumstances of his involvement in the two robberies.

12.Whilst the Court of Appeal can entertain an appeal against conviction even though the applicant pleaded guilty, it needs to be demonstrated that the guilty plea was based upon some form of error or misunderstanding, or some defect in the proceedings. This Court in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125, 135D-I, set out six circumstances where a plea of guilty could be rendered a nullity. There is nothing to suggest that the applicant’s pleas fell within any of these circumstances. The only complaint he seems to raise is that his letter was not read by the court below.

13.I am informed by the respondent that at the sentencing hearing, the Judge had referred to “letters from the defendant” which set out “the pressure that he was under”. There was nothing to indicate that any issue was taken in relation to the pleas or the admitted facts. Both the applicant and his counsel had focused on the financial pressure the applicant was under to commit the present offences. The respondent further submits that the applicant had indicated his willingness to plead guilty at the magistracy level, and was thus committed to the Court of First Instance for sentence. He had pleaded guilty on the return day and his plea was confirmed before the Judge.

Conclusion

14.This application is devoid of merit and leave to appeal against conviction is refused.

15.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed 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.

Ms Audrey Parwani, SPP of the Department of Justice, for the respondent

The applicant appears in person