HKSAR v. Lam Ka Hung

CACC000294/2003

CACC 294/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 294 OF 2003

(ON APPEAL FROM DCCC 525 OF 2003)

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Coram: Hon Stuart-Moore VP and Gall J

Date of Hearing: 29 January 2004

Date of Judgment: 29 January 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 27 June 2003, the Applicant, aged 31, pleaded guilty in the District Court before Judge Saunders to a charge of robbery for which he was sentenced to three years and four months' imprisonment.

2.The Applicant now seeks leave to appeal against his sentence on the ground that in all the circumstances the five-year starting point taken by the judge was manifestly excessive. The Respondent has conceded, having regard to previous sentencing decisions of this court, that the starting point ought to have been no more than four years and to this extent no dispute arises in law or on the facts.

3.The facts were straightforward. The female victim, aged 57, was the subject of a handbag snatch at about 7.15 pm on 10 May 2003 on the 3rd floor of a residential building as she was making her way back to her flat. After her shoulder had been "pressed down", she then struggled with her assailant. Both of them fell to the ground. The victim sustained a minor abrasion to a finger.

4.As a result of the victim's shouts, the Applicant was apprehended. He shortly afterwards confessed and said that his decision to rob had arisen from the length of time he had been unemployed.

5.The Applicant had used no weapon in the course of this robbery. In HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378, where this court was also concerned with an unarmed robbery, committed on that occasion by four men on a couple who had been out walking, the sentencing judge had specifically held a Newton inquiry to determine whether a knife had been produced in the course of the offence. Having found that he could not be satisfied that a knife had been produced, the judge went on to take a five-year starting point. When allowing the appeal, Woo JA (as he then was) said (at p. 383):

".... we are of the view that a proper starting point, taking into account the robbery in our case being an unarmed one, should, as a matter of principle, be lower than that for an armed robbery of the kind envisaged in Mo Kwong Sang v The Queen [1981] HKLR 610. However, as it was committed by the two applicants and two other young males at large, the starting point should be 4 years instead of the 5 years as adopted by the Judge."

6.A sentence of four years' imprisonment for a robbery where no weapons are displayed was described by Roberts CJ in R v Yau Kwok-tung [1987] HKLR 782 at 783 (a decision to which the court in HKSAR v Ting Chiu & Anor (above) was referred) as being "at the top end of the tariff".

7.We note in the present case that although the Applicant has eleven previous convictions, none of those was in any way related to robbery or even violence. In all the circumstances, we think that a proper starting point after trial, which counsel on both sides in this case accepted would be appropriate, would have been four years' imprisonment.

8.Accordingly, treating the hearing as the appeal, we shall allow the appeal by quashing the sentence of three years and four months. In its place, giving full credit for the timely plea of guilty, we shall substitute a sentence of two years and eight months' imprisonment.

Representation:

Mr Arthur Luk, SC, DDPP and Mr Timothy Tso, GC,of the Department of Justice, for the Respondent.

Mr John Halley,instructed by Director ofLegal Aid, for the Applicant.