HKSAR v. Leung Ho Hin and Another

CACC 35/2023 [2023] HKCA 783

On appeal from [2023] HKCFI 572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 35 OF 2023

(ON APPEAL FROM HCCC NO 176 OF 2022)

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J U D G M E N T

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1.The 1^st and 2^nd applicants had the trial designations of D3 and D4. They had been charged with a single count of robbery, in which it was alleged that on 24 July 2020, they together with Lam Chi Hang robbed Ma Yi Fan of HK$1,854,183 and other personal items in a shoulder bag. They pleaded guilty in the Magistracy and were committed for sentence before Deputy High Court Judge Eric Kwok, SC, (the judge). On 7 February 2023, the judge sentenced D3 to 8 years and 4 months’ imprisonment and D4 to 8 years’ imprisonment. They apply for leave to appeal against their sentences. They appear in person having had legal aid refused to them.

2.The victim of the robbery, Mr Ma Yi Fan (Mr Ma), was an employee of the Great Loyalty Money Exchange shop located in Tsim Sha Tsui. In the evening of 24 July 2020, he counted the money as particularised in the charge and put it in a shoulder bag, which also contained personal items. He carried the shoulder bag for Madam Chao Hang Mei ( Madam Chao), the shop owner, who was intending to take the money home and deliver it to another money exchange shop the next day. As they were about to hail a taxi, they were attacked by two males, who were subsequently identified as D3 and D4. Mr Ma suddenly felt that his left shoulder had been chopped. He turned around and saw D3 wearing a cap and a face mask, armed with a foot-long knife. He then felt someone trying to snatch the shoulder bag. He maintained a hold of the shoulder bag but was chopped again to his left leg and was bleeding heavily. He was scared he would be furthered chopped, so he let go of the shoulder bag, which was snatched by D4, who was also wearing a cap and face mask. D3 and D4 fled in the same direction and Madam Chao gave chase but was threatened by D3 with the knife. A passer-by observed the incident and recorded the registration number of the car that D3 and D4 used to flee the scene.

3.As a result of the robbery, Mr Ma suffered deep laceration wounds over his left upper arm and left posterior calf region. He required major surgery and sustained permanent disability from the injuries he received from as a result of this attack. The money and other items were never recovered.

4.This was an extremely bad case of robbery, and I cannot find fault with the judge’s determination of the starting point of 12 years’ imprisonment which he correctly adopted for both applicants because it was a joint enterprise: Mo Kwong Sang v R [1981] HKLR 610; HKSAR v Limbu Binod [2021] HKCA 1431. D3 was fortunate to receive no further enhancement to the starting point for his previous convictions for violent offences, including robbery. The judge decided not to do so because the robbery occurred when the first applicant was in his teens. However, the judge enhanced the starting point by 6 months as he committed the present offence while he was on police bail for a dangerous drugs case. The judge found that the only meaningful mitigation was their early guilty pleas, for which he reduced the starting point by one third and sentenced D3 to 8 years and 4 months’ imprisonment and the D4 to 8 years imprisonment.

5.The two applicants complain about their sentences. D3 contends that his sentence was too heavy. D3 seeks to rely on sentences passed in other robbery cases but they are of little, or no, assistance as no two cases are alike. The issue for consideration in this application is whether the sentence imposed on the applicants was contrary to the facts and circumstances of the case and the relevant sentencing principles. D4 argues that he should not receive the same sentence as D3 because D3’s conduct was more serious. This was a vicious and violent robbery in which a dangerous weapon was used to inflict serious injury on the victim. In mitigation on behalf of D4, it was submitted that D4 was told that the job involved “snatching something from a person” and he only saw that D3 was carrying a knife when they approached the victims. It was submitted that had D4 known that D3 would use a chopper to attack the victim, he would not have agreed to commit the robbery. He only appreciated the gravity of the situation when it was too late. The judge rightly rejected this mitigation. It is clear from the summary of facts agreed to by D3 and D4 that they were acting in concert and coordinated their actions to ensure that Mr Ma was severely injured and unable to resist D4 from snatching the bag. It was a premeditated and well planned robbery, which was also well coordinated with D3 doing the chopping, disabling Mr Ma, and D4 doing the snatching of the bag, as they made their getaway to a nearby vehicle to make good their escape from the scene. None of the stolen property was recovered.

6.The applicants were rightly held responsible for each other’s actions in perpetrating this crime. In treating them as equally responsible for the crime, the judge noted it was a joint enterprise, which he described as follows[1]:

“The victims, namely Mr Ma and Madam Chao, were wounded or threatened with a lethal weapon. This is a well-planned robbery with getaway vehicle waiting at the vicinity of the crime scene. There were at least three people acting in concert and none of the stolen properties, total value over $1.8 million, was recovered. No doubt Great Loyalty Money Exchange was being targeted and the robbery was planned in advance. Both defendants wore caps and facial masks to cover themselves up at the time of the robbery.”

7.This was a serious case of robbery, involving two robbers and possibly others; the use of a weapon; the infliction of serious injuries to the victim; and the stealing of a large sum of cash from a money exchange shop. The judge was, therefore, correct to adopt the same starting point in sentencing each applicant, and there is no basis for the applicants to complain that the sentence was too heavy. The grounds of appeal advanced by the applicants are not reasonably arguable, and their applications for leave to appeal against their sentences are refused.

8.The applicants are reminded of their right to renew their application for leave to the Court of Appeal, but they are also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending their appeals, if the Court were to come to the view that there was no justification for the renewal of their applications.

Ms Sabra Lo, SPP, of Department of Justice, for the respondent

The 1^st applicant appeared in person

The 2^nd applicant appeared in person