HKSAR v. Li Fuchao and Another

CACC 189/2021, [2024] HKCA 732

On appeal from [2021] HKCFI 2629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 189 OF 2021

(ON APPEAL FROM HCCC NO 80 OF 2021)

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JUDGMENT

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Hon M Poon JA (giving the Judgment of the Court):

Background

1.The applicants pleaded guilty in the Magistrates’ Court to a single charge of Robbery, contrary to section 10 of the Theft Ordinance, Cap 210 on 15 March 2021 and were committed to the High Court for sentence. On 16 August 2021, they were each sentenced to 8 years’ imprisonment by Toh J (“the Judge”).

2.Notices of application for leave to appeal against their sentences (Form XI) were filed by the 1^st and 2^nd applicants on 24^th and 26^th August, 2021 respectively.

Summary of facts [1]

3.The two applicants took part in the robbery of a watch shop in Causeway Bay Plaza (“28 Watches”) on 22 December 2019. Shortly before 7 pm, the 1^st applicant smashed the shop window with an unknown male with hammers whilst the 2^nd applicant pointed a black pistol-like object at the staff and ordered them not to move. The 2^nd applicant also threatened a security guard with a knife and warned him not to get close as he was armed. The three of them took away a number of watches and fled. A total of 12 second-hand watches worth about $762,500 were stolen. The course of the robbery was captured by CCTV.

4.A knife, two hammers, a black glove, an air gun associated with the robbery were seized by the police from a nearby alley. Three watches, later identified to be part of the stolen property and valued at about $181,000, were also retrieved. The air gun was subsequently examined and found not to be in working order.

5.According to Immigration records, the 1^st applicant entered Hong Kong on 20 December, and left on 22 December 2019. The 2^nd applicant entered Hong Kong on 22 December 2019 and left on the same day.

6.The applicants were arrested on 13 January 2020. Two other stolen watches worth about $74,500 were retrieved at a false ceiling of a hotel room where the 1^st applicant had stayed.

7.In his video-recorded interview (“VRI”), the 1^st applicant claimed to be a vegetable seller in Guangzhou. He said that he and the 2^nd applicant and the third male were recruited by his fellow villager called “Ah Ka” to come to Hong Kong to commit robbery. The 2^nd applicant said in his VRI that he lived in the mainland and was unemployed.

The sentences of the applicants

8.The Judge referred herself to the case of The Queen v Yu Tai Wing[2]. She found the robbery to be well-planned, and the applicants had come to Hong Kong to commit the robbery. The Judge adopted 12 years’ imprisonment as the starting point and gave them the one-third discount for their timely guilty pleas. Each applicant was sentenced to 8 years’ imprisonment.

The Applicants’ common ground of appeal and submission

9.Both applicants, represented by Mr Marray, relied on the common ground that they had rendered assistance to the authorities by implicating and testifying against Li Jiawen (“LJW”), which had led to his eventual conviction. Accordingly, they should be entitled to a sentencing discount above the usual one-third given for their guilty pleas: Z v HKSAR [3]; HKSAR v Leung Kai Wing [4]; HKSAR v Lo Sze Tung Stephanie [5]. Mr Marray also contended that by testifying against LJW the applicants had exposed themselves and their families to danger. It was submitted that the Court should consider a discount of 50% (including the one-third discount for their pleas).

The respondent’s submission

10.Ms Angela Wong, on behalf of the respondent, did not oppose leave to be granted to the applicants to appeal against their sentences on the ground of their assistance. The respondent is of the view that the assistance provided by both applicants had been of practical use to the successful apprehension, prosecution and conviction of LJW. Miss Wong contended that the Court may consider a 50% discount in the circumstances of the present case.

Discussion

11.A letter issued by the Department of Justice on 22 November 2021 set out the 1^st applicant’s assistance as follows. Two non-prejudicial statements were given on 14 December 2020 and 15 October 2021 implicating LJW, which led to his arrest on 17 September 2021. The 1^st applicant positively identified LJW at an identification parade on 15 October 2021.

12.The 2^nd applicant’s assistance was set out in a letter from the Department of Justice on 1 November 2021. He had given one non-prejudicial statement on 1 March 2021, mentioning the full names of LJW and his wife, and the approximate whereabouts of their residence in Hong Kong. LJW was arrested as a result and was positively identified by the 2^nd applicant in an identification parade on 15 October 2021.

13.Under caution, LJW admitted his knowledge of the robbery but denied recruiting anyone.

14.LJW was subsequently charged with one count of Robbery. He pleaded not guilty and was committed to the High Court for trial on 6 June 2022 in HCCC 72/2022. The trial took place between 21 May 2024 and 4 June 2024. A total of three prosecution witnesses were called. The applicants testified against LJW as PW2 and PW3. On 4 June 2024, LJW was convicted of robbery by the jury and was subsequently sentenced to 13 years’ imprisonment.

15.We have no doubt that both applicants have given practical and useful assistance to the authorities, which led to the arrest of LJW. They persisted in their assistance by giving truthful and material evidence in line with their non-prejudicial statements at the trial of LJW, which resulted in his conviction. As to the claim that by incriminating LJW the applicants have exposed themselves and their families to risks of danger, there is no evidence before us that there had been any attempt to harm the applicants or anyone close to them. There is no reason to believe that such risk is particularly great after their release from prison. As it was stated in HKSAR v Chan Sik Wai and Anor [6]:

“23. … Others who merely ‘grass’ on their co-accused also put themselves at risk and are entitled to a substantial discount, but seldom will this exceed 50%.”

16.We are of the view that this is a classic case where the applicants should be given a 50% discount.

Disposal

17.For these reasons, we grant the application and, treating the hearing of the application as the hearing of the appeal, we allow the appeal. The sentence of 8 years’ imprisonment in respect of each applicant is set aside and we sentence each of them to 6 years’ imprisonment.

Miss Angela Wong, SPP(Ag.) of the Department of Justice, for the respondent

Mr John Marray, instructed by KCL & Partners, assigned by the Director of Legal Aid, for the 1^st and 2^nd applicants