HKSAR v. Hung on Tik

CACC000201/1999

CACC 201/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 201 OF 1999

(ON APPEAL FROM HCCC 35 OF 1999)

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Coram: Hon Nazareth, V-P, Stuart-Moore, V-P & Wong, JA in Court

Date of Hearing: 9 July 1999

Date of Judgment: 9 July 1999

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J U D G M E N T

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Wong, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence.

2. The applicant pleaded guilty before Burrell, J. in the High Court to one count of robbery, two counts of theft, one count of burglary and lastly one count of attempted burglary. Suffice it to say that he was sentenced to 6 years and 8 months imprisonment for all these offences. A suspended sentence of 4 months was activated bringing the total to 7 years.

3. In so far as the count of robbery and the two counts of theft were concerned, the applicant who was the 1st Defendant in the court below and another male the 2nd Defendant entered the subject premises at Room 705, 7th floor, Melbourne Plaza, Central intending to burgle the premises. At this time, the victim in this case, a teacher, returned and he was threatened with a knife and robbed of cash HK$4,000, two visa cards and a mobile telephone. Before the applicant and the 2nd defendant left, they forced the victim to disclose the PIN of his credit cards. The victim was tied up with a telephone cord.

4. Using the credit cards and the PIN, the applicant and his co-accused withdrew cash totalling $26,000 at automatic teller machine points of the two banks.

5. In relation to the burglary, the applicant admitted breaking into commercial premises in Tsimshatsui and taking away some cash and a notebook computer. He also led the police to recover the notebook computer later.

6. The attempted burglary was discovered when the applicant and the 2nd defendant were seen squatting outside an office in Central prying the lock with a screwdriver. The 2nd defendant was carrying a carrier bag in his arm. During the search, the applicant hurled two other screwdrivers and a pair of gloves onto the ground. Before us, the applicant pleaded for leniency on the ground that his family had been suffering from financial difficulty, his father ran away when he was young and his mother had to support the family and as the oldest son of the family, he also had to work in order to help the mother out. Because of the economic downturn in Hong Kong, he was dismissed from his job and in order to support the family, his mother applied for credit cards from banks and built up huge debts and subsequently the banks pressed for payment of the debts and because he was out of job and he had to take the risk to resort to crime to get his mother out of difficulty.

7. We take these matters into consideration. This Court has said time and again that family background or financial hardship are seldom good mitigating factors for serious crimes. The applicant has a previous record of similar offences, namely, theft and burglary and two other offences involving dishonesty. Even if it is true that he committed the offences to help his mother and family, it is not an excuse. The robbery was committed by two men inside private premises and the applicant was armed with a knife. The victim, who interrupted the burglary, was threatened at knife point. He was tied up and he was forced to disclose the PIN of his credit cards, which resulted in a large amount of money having been withdrawn.

8. During the course of sentence, the judge also took as an aggravating factor that after the robbery the applicant and his co-accused immediately helped themselves to the victim's money at nearby ATM machines. He and his co-accused went on to commit two further offences of burglary. There is nothing wrong with the sentence. It is, by any standard, a lenient sentence. The application is dismissed.

9. The appeal is completely without merit and should not have been pursued. The time of the Court has been unnecessarily wasted. For these reasons, we order a loss of time of 3 months.

Representation:

Ms Anna Lai, SGC for Director of Public Prosecution

Applicant: Hung On-tik, in person