HKSAR v. Sahil Kumar and Another

CACC 173/2021

[2023] HKCA 102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 173 OF 2021

(ON APPEAL FROM HCCC NO 151 OF 2020)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.The appellants were jointly charged with one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210. Each pleaded guilty before a magistrate at his committal to the High Court for sentence. On 30 July 2021, before Barnes J (“the judge”), the 1^st appellant (“A1”) was sentenced to 6 years and 7 months’ imprisonment (3 years of which was ordered to run consecutively to the expiration of an existing sentence A1 was serving for a similar offence); while the 2^nd appellant (“A2”) was sentenced to 6 years and 7 months’ imprisonment.

2.The appellants were granted leave to appeal by the Single Judge[1] on 17 May 2022. On 13 January 2023, having heard argument from the parties, we reserved judgment and indicated that we would hand down our decision in due course. This is that decision.

The facts

3.At about 5 pm on 2 May 2019, PW1 went to a currency exchange shop in Hung Hom, Kowloon and collected HK$4 million in cash, which he then placed in his backpack before leaving the shop. About fifteen minutes later, when PW1 was walking past G/F, Fashion World, Whampoa Garden Site 2 in Hung Hom, he felt someone pulling at his backpack forcefully. He turned and saw A1 behind him on his right, and A2 on his left. A1 pointed a knife at PW1 and one of the appellants then pushed him. PW1 fell to the ground during which he was also struck with an object on his left calf. His lips and front teeth were injured as he fell. A2 relieved PW1 of his backpack and both appellants fled.

4.PW1 shouted and gave chase. PW2 and PW3, who were members of staff at a nearby Pizza Hut restaurant, saw the commotion and gave chase. They saw A1 holding a light-coloured backpack; and A2, a dark-coloured backpack. The men ran into a shopping mall, where PW2 caught hold of A2 by grabbing his dark-coloured backpack. A2 struggled, managed to free himself from PW2’s grasp and fled. However, in the process, PW2 was able to hold onto the dark-coloured backpack. A1 successfully evaded the pursuit of PW2 and PW3.

5.An off-duty police officer, who was driving in the vicinity, saw A1 and A2 run past the front of his car. An off-duty police sergeant, PW4, witnessed part of the chase. When A1 and A2 were heading towards him, PW4 declared his police identity. A1 immediately discarded the light-coloured backpack and fled. A2 also fled. PW4 intercepted and subdued A1 successfully; however, A2 escaped.

6.Inside the light-coloured backpack left behind by A1 were found, inter alia, a plastic bag, a long-sleeved shirt and a knife, about 45 cm in length. PW1 identified the dark-coloured backpack, which had been wrested from A2, as his. The HK$4 million in cash in PW1’s backpack remained intact.

7.Two video recorded interviews were taken from A1. Among other things, he said that he committed the robbery because he owed A2 money and the latter had instructed him to attack a Chinese male, for which he gave him a bag containing the knife. He did not injure PW1 with the knife.

8.A2 was subsequently located and arrested by the police on the following day inside residential premises in Hung Hom. Two video recorded interviews were taken from A2. Among other things, A2 claimed not to have been at the scene at the time of offence. However, A2 was later identified by the off-duty police officer in his car; moreover, A2’s DNA was found on the long-sleeved shirt inside the light-coloured backpack, which had been discarded by A1.

9.PW1 was found to have abrasions on his right wrist and forearm and a laceration to his left calf. He was given treatment and discharged from hospital on the same day.

Reasons for sentence

10.A1 was 22 years of age and a Form 8 recognizance holder. He had one previous conviction for robbery in HCCC 153/2020, for which he was sentenced in the High Court by the same judge to 8 years and 4 months’ imprisonment[2]. In that case, A1 had pleaded guilty to committing a robbery in concert with three other persons (none of which was A2) on 21 September 2018. In the course of that robbery, two victims were slashed on the leg with a knife (albeit not by A1), as a result of which one of them suffered serious injuries and was granted 34 days’ sick leave.

11.A2 was aged 41 years of age, a Form 8 recognizance holder with one previous conviction for robbery in August 2016, for which he was sentenced to 38 months’ imprisonment in the District Court. It was said on behalf of A2 that he had been recruited to carry out this robbery for $5,000. He had been instructed to snatch the victim’s bag but maintained that he did not know that his accomplice was carrying a knife.

12.The judge noted that the prosecution relied on the guidelines established in Mo Kwong Sang v R[3], as well as HKSAR v Yiu Chi Ming & Another[4]. The judge remarked that A1 and A2 had acted in concert in targeting a victim, who had just collected a large sum of money. A knife was used to threaten the victim and, although no wounds were inflicted with the weapon, PW1 had suffered injuries to his lips and teeth when he hit the ground after being pushed. She noted that all of the money had been recovered and no loss was ultimately suffered. The judge considered that A1 and A2 shared the same level of culpability in this joint enterprise and adopted a starting point in respect of the facts of the robbery of 9 years’ imprisonment.

13.However, she found several aggravating features in respect of both appellants. Firstly, A1 had a previous conviction for a very serious robbery. For this, the judge enhanced the starting point by 1 year. Secondly, A1 was a Form 8 recognizance holder, for which the starting point was further enhanced by 1 year, resulting in a notional sentence after trial of 11 years’ imprisonment. Allowing a full one-third discount for his timely plea of guilty, the judge reduced the sentence from 11 years’ imprisonment to 7 years and 4 months’ imprisonment. Accepting that A1 had rendered potentially useful assistance to the authorities, the judge considered that an overall discount of 40 per cent, including the discount for plea, was appropriate. The sentence was thereby further reduced to 6 years and 7 months’ imprisonment.

14.In respect of A2, the judge identified the following aggravating factors. Firstly, A2 was a Form 8 recognizance holder, for which the starting point was enhanced by 1 year. Secondly, A2 had a previous conviction for robbery in 2016; for this, the starting point was further enhanced by 6 months, making a notional sentence after trial of 10½ years’ imprisonment. Giving A2 a full one-third discount for his guilty plea, the sentence was reduced to 7 years’ imprisonment. Giving A2 some recognition for his assistance, the judge gave an overall discount, including the discount for plea, of 37 percent. A2’s sentence likewise became 6 years and 7 months’ imprisonment.

15.The judge then turned to consider totality in A1’s case. A1 was serving 8 years and 4 months’ imprisonment for another very serious robbery, which was unconnected with the one for which she was passing sentence. Accordingly, she ordered 3 years of the sentence in the present case to run consecutively and commence at the expiration of A1’s term in the other case, with the remainder of the term to run concurrently.

A1’s grounds of appeal

16.Mr HY Wong, on behalf of A1, has essentially advanced two grounds of appeal. Firstly, he submitted that the enhanced starting point of 11 years’ imprisonment was manifestly excessive when compared with other similar, if not more serious, cases. Acknowledging that a degree of planning had gone into the case and a knife had been used, only minor injuries had been suffered and no loss had ultimately been occasioned. Accordingly, he contended that an initial starting point of 9 years’ imprisonment was too harsh. Furthermore, the 1-year enhancement for the previous conviction should already have been factored into the 9 years’ starting point.

17.Secondly, Mr Wong complained that by ordering 3 years of the present sentence to run from the expiration of the sentence of 8 years and 4 months’ imprisonment in HCCC 153/2020 effectively meant that there was an overall starting point in respect of both robberies of 18 years and 11 months’ imprisonment. Moreover, A1’s two sentences had both been enhanced by 1 year for being a recognizance holder, which constituted an element of double-counting[5].

A2’s grounds of appeal

18.Mr John Marray, representing A2, similarly advanced two grounds of appeal. Firstly, he took issue with the starting point of 9 years’ imprisonment, since (i) the robbery took place on the streets and there was no invasion of private premises; (ii) the victim only sustained minor injuries; and (iii) all the money was recovered. He relied on various authorities to demonstrate that the present case was much less serious in comparison and a significantly lower starting point should, therefore, have been adopted.

19.Secondly, while Mr Marray took no issue with the individual enhancements in themselves, he argued that the sentence was manifestly excessive because the totality principle had not been properly applied. He submitted it was wrong in principle merely to add up a series of individual enhancements for various aggravating factors without applying the totality principle[6].

The respondent’s submissions

20.Ms Winnie Mok, for the respondent, referred to HKSAR v Man Siu Ming & Another^[7], which made the point that, despite established guidelines for sentencing in robbery cases, a trial judge possessed considerable discretion in identifying an appropriate starting point. Sentencing guidelines may help a trial judge assess the seriousness of the case and point him towards a particular range of sentence; they did not, other than in the most straightforward case, dictate a starting point. She made the further point, which had recently been emphasised by Zervos JA in HKSAR v Limbu Binod[8], that comparisons with other sentences in robbery cases were not particularly helpful, since no two cases were the same, with the same aggravating and mitigating features.

21.Both A1 and A2 had previous convictions for the same type of serious offence, which was a grave aggravating feature according to the Court in HKSAR v Tam Kam Mun[9]. The fact that A1’s previous armed robbery was committed about 7 months before this robbery revealed him to be a dangerous and violent recidivist, for which a specific and general deterrent sentence was called for. As for A2, his previous conviction was also for an unarmed robbery[10], albeit in the District Court rather than the High Court, which the trial judge reflected when she enhanced his sentence by 6 months. Such an enhancement was properly within the judge’s discretion and could not be said to be manifestly excessive.

22.Finally, Ms Mok dismissed argument that by ordering 3 years of A1’s sentence in the present case to run consecutively to his sentence in HCCC 153/2020 the sentence had become manifestly excessive: the judge, who was the same judge in both cases, was in a perfect position to assess the overall totality of A1’s conduct and culpability as well as his mitigation.

Discussion

23.The armed robbery with which we are concerned in this appeal was an extremely serious example of its type. There were a number of significant aggravating features, which took the offence well beyond the guidelines in Mo Kwong Sang. Firstly, the robbery was clearly premeditated and planned: it must have been previously known by the appellants that PW1 would be collecting a very significant amount of money from the money exchange shop. Secondly, those who conduct business in money exchange shops, like those withdrawing money from banks, are highly vulnerable to attack, particularly when those involved have some information or intelligence about large amounts of money being transacted by particular clients.

24.It is well to remember that the Court in Yiu Chi Ming said in relation to the robberies of banks[11]:

“Bank robberies are particularly serious offences because banks are in possession of large amounts of cash, thus offering great temptation to potential robbers. Whilst D2 and his accomplices did not actually target the bank, the same reasoning applies as people who withdraw large amounts of money from the bank are vulnerable and they, too, offer great temptation to potential robbers. We were satisfied that robberies of victims who have just left the bank deserve greater deterrence.”

Of these remarks, Macrae JA (as he then was), sitting as a Single Judge on an application for leave to appeal, said in HKSAR v Anees Khiyam[12]:

“These comments might well be thought to apply with equal force to exchange shops where customers will, by the very nature of the business, be depositing and obtaining sometimes large amounts of cash.”

The Court subsequently endorsed this statement from Anees Khiyam in HKSAR v Leung Pui & Others[13]:

“We are satisfied that in addition to the litany of aggravating factors to which the judge had regard, there is an additional other factor, namely that the victims of the attempted robbery were operating a money exchange/remittance business. As such, they are to be regarded as vulnerable businesses of a kind similar to banks and jewellery shops.”

25.Thirdly, two men were acting in concert committing a brazen and dangerous offence in broad daylight and in an open public place. It is true that the Court in Mo Kwong Sang rightly regarded a robbery of domestic premises by night as an aggravating feature, no doubt for the particular horror such an offence may cause to people who are violated in their own homes in the hours of darkness. However, that does not mean that a robbery in public and in broad daylight is any less shocking or egregious. In fact, such violence on the streets can cause widespread panic, even terror and, ultimately, significant trauma for ordinary citizens, in particular children and the elderly, who may witness such a brazen and shocking spectacle in a public place during working hours. Furthermore, there is a real risk that ordinary members of the public may get caught up in the crime and themselves fall victim to it. We have seen the weapon, which has been rather innocuously referred to in the Summary of Facts as a “knife”. It was in fact an 18” chopper with a 12” curved blade, which could quite easily maim or kill if resistance is mounted. PW1 was indeed fortunate that the only injuries he suffered were to his left calf and his face and teeth when he fell.

26.Fourthly, the amount stolen in the robbery was no less than HK$4 million, an enormous sum for anyone to bear losing. It is a sheer matter of happenstance that through the heroic efforts of two public-spirited citizens who happened to see the commotion on the street and decided to give chase and engage the appellants that PW1 did not ultimately lose any of his money.

27.In our judgment, the judge’s starting point of 9 years’ imprisonment to reflect the above aggravating features, cannot be faulted.

28.Both appellants were Form 8 recognizance holders and the judge could not realistically have considered anything less than 1-year enhancements for such a serious crime committed in public, which will have seriously compromised this City’s reputation for the safety and security of its streets.

29.Nor can either appellant take issue with their respective enhancements for having previously committed another serious robbery. The circumstances of A1’s previous conviction in HCCC 153/2020 were even more serious than the case before us, as well as being committed a mere 7 months earlier; while the circumstances of A2’s previous conviction were evidently not quite as serious as the present case. The judge was plainly aware of these differences; hence the distinction in the enhancements for this factor. In our judgment, the appellants’ criminal records show that both appellants are a continuing and dangerous threat to the peace and security of the people of Hong Kong.

30.The only issue which has engaged us is whether the enhancement of 1 year for A1’s status as a Form 8 recognizance holder has been counted twice in the two sentences passed upon him. There is a superficial attraction to the notion that this factor has been double-counted, until one remembers that the sentencing judge in both cases was not only the same judge, but a highly experienced one, who clearly, from her sentencing remarks, knew what she had said and why in the previous sentencing exercise. These were very serious robberies with lethal weapons, committed a mere 7 months apart, by someone who is not a citizen of Hong Kong but who has been permitted to remain at liberty on our streets under a Form 8 recognizance issued by the Immigration Authority, while his claim for asylum is processed. Had both offences been dealt with together by the same judge at the same time, we would not have interfered with a 2-year enhancement for this factor. Indeed, as Ms Mok has pointed out, that was the precise enhancement adopted by the trial judge in Singh Gursevak for a single case of serious robbery with knives: such enhancement was not criticised on appeal.

31.We have ultimately concluded that there is nothing in the double-counting point.

32.That brings us to the complaint that had the judge dealt with both of A1’s sentences at the same time, she would have adopted an overall lower starting point for the two offences resulting in a shorter consecutive element as between them. We find this an artificial argument.

33.A1 had committed two very serious street robberies with knives, together with accomplices, some 7 months apart. They were wholly different and unconnected offences. It should be remembered that the maximum sentence for a single offence of robbery is life imprisonment and that, subject to the question of totality, there clearly needed to be a significant consecutive element as between the two different offences. Since we find no error in the judge’s sentence for the offence with which we are immediately concerned, the sole question then becomes whether 3 years of this sentence should effectively have been ordered to run consecutively to the previous sentence currently being served by the appellant.

34.We do not think that the judge could realistically have made anything less than 3 years run consecutively to the appellant’s existing sentence, given the gravity of the offence and the fact that it was committed in completely different circumstances a mere 7 months after another unrelated robbery. To have done otherwise would not have given proper recognition to just how serious and separate the offence was. A1 is a violent robber who, as we have already said, is a continuing threat to the security and well-being of the people of Hong Kong. In the circumstances, a sentence that was both a personal and a general deterrent was plainly warranted.

35.The appeals against sentence by both appellants are refused.

Post-script

36.Finally, we would like to reiterate a matter which we discussed during the hearing of the appeal. PW2, Mr Yip Wan-sing, and PW3, Mr Chan Chuen-fai, are to be commended by this Court for the actions they took on the day of the offence in giving chase to the appellants, retrieving HK$4 million before it was dissipated and ultimately in bringing two dangerous men to justice, without any connection with PW1 and without any apparent concern for their own safety. Their actions were nothing short of selfless, public-spirited, indeed, heroic and we trust that they will be marked, if they have not already been marked, in some suitable and appropriate way by the authorities on behalf of the people of Hong Kong. We would request that the respondent forward a copy of this judgment to each of them.

Ms Winnie Mok SPP, of the Department of Justice, for the Respondent

Mr H Y Wong, instructed by Boase, Cohen & Collins, assigned by the Director of Legal Aid, for the 1^st Appellant

Mr John Marray, instructed by the Legal Aid Department, for the 2^nd Appellant