HKSAR v. Cheung Yiu Kwan

CACC000288/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.288
(Criminal)

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Coram: Hon. Power, V.-P. Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 3 November 1998

Date of Judgment: 3 November 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. In this matter the applicant faced one charge of robbery. It was particularized that he, on 7th March 1998, at the corridor of 6th floor, Nam On House, Nam Shan Estate, Shek Kip Mei, Kowloon, robbed Or Lai-kuen of a jade wristlet. He pleaded not guilty to that charge but was found guilty, after trial before Judge Line, and sentenced to imprisonment for 4 1/2 years He now seeks leave to appeal against that sentence.

2. The facts as set out in the Summary of Facts indicate that at about 4:30 p.m. on 7th March 1998, Madam Or was returning home from a hairdressing salon. She went by lift to the 6th floor and was then walking along the corridor towards her flat. When she had almost reached the flat, she heard footsteps from behind and the applicant walked past her and then stopped in front of her. All of a sudden, he punched her head and face repeatedly with both hands. She shouted for help, however this did not deter the applicant who grabbed hold of her neck. She kept screaming and he tried to snatch her jade wristlet. Because of her resistance, he was unable to do so without breaking the wristlet. Fortunately, an off-duty police officer, who was in his mother-in-law's premises nearby, heard the shouting and came out and saw the struggle. The applicant, on seeing his approach, threw away the wristlet and, as the police officer approached him and attempted to subdue him, he resisted vigorously. He continued to struggle until both of the men were on the floor. A neighbour then came to assist and two men subdued the applicant. Shortly thereafter, a uniformed police constable arrived and the applicant was arrested.

3. Both Madam Or and the off-duty police officer were sent to hospital and discharged after treatment. Madam Or had a contusion on her head and a mild bruise on her right face, and the off-duty officer had an abrasion on his right hand finger.

4. The applicant pleaded not guilty to the charge and was found guilty after trial.

5. The trial judge, when sentencing, said:

"The robbery of lone women returning home to their flats on housing estates is a grave and common crime. It is one that is easy for desperate men to commit. The well-known case of Mo Kwong-sang talks of a starting point of 5 years' imprisonment where a weapon is revealed."

The judge said he bore in mind that no weapon was displayed but added:

"But as a substituted for that, in order to facilitate your robbery, you immediately hit that 58 year old woman in the face.

That was a wicked piece of violence. I wondered whether or not I should not start at 5 years but in fact I have started at 4 1/2 years because there is always the potential for more harm if a weapon is carried. This was a cowardly thing to do.

There is no mitigation available to you. There is nothing in your character that can help you. You have previous convictions for theft. You could have earned a substantial discount by pleading guilty. You chose not to. I have no doubt you knew of the discount available to you. It was your choice to throw it away."

6. The applicant had, as the judge indicated, a bad record. He could hope for no reduction from the starting point for sentence on the score of character. He had used, again, as the judge remarked, entirely gratuitous and immediate violence.

7. We have today been referred by Ms. Yip, who appears for him, to a number of cases. We are not normally greatly assisted by having recited to us a catalogue of cases in which the facts are quite different and where, in some cases, the crime occurred a considerable time ago. We are assisted, of course, by guideline cases and Mo Kwong-sang is one. The judge was satisfied that he could properly adapt that case to the circumstances before him. If anything the authorities to which we were referred indicated that the sentence passed was within the proper range.

8. As we have said, what made this an offence of particular seriousness was the immediate use of gratuitous violence which clearly indicates that the applicant was, from the outset, intent upon beating the victim into submission and then robbing her. The sentence imposed was an entirely appropriate one.

9. The application is refused. This application has been entirely without merit. we order that there be two months loss of the time that has elapsed between the entry of the Notice of Appeal and today's hearing.

Representation:

Mr. Joseph To (D.P.P.) for the Respondent.

Ms. Liza S.H. Yip assigned by D.L.A. for Applicant.