HKSAR v. Pau Kwok-wah

CACC 174/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 174 OF 2004

(ON APPEAL FROM NO. HCCC 239 & 241 of 2002)

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BETWEEN

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Before Hon Stock JA & Yeung JA in Court

Date of Hearing:  30 June 2004

Date of Judgment: 30 June 2004

J U D G M E N T

Hon Yeung JA (giving judgment of the Court):

1.In two separate cases, the applicant (Pau Kwok-wah) was charged with a total of four counts of robbery and one count of attempt robbery.

2.The applicant pleaded guilty to one charge of robbery at committal in HCCC 241/2002, and was committed to trial on three charges of robbery and one charge of attempted robbery in HCCC 239/2002.

3.The applicant pleaded guilty to those charges before Beeson J in the High Court on 4 October 2002.

4.In HCCC 239/2002, the applicant was sentenced to three years and four months’ imprisonment for each of the charges to run concurrently.

5.In HCCC 241/2002, the applicant was sentenced to four years’ imprisonment to run consecutively to three years of the three-year and four-month sentence imposed in HCCC 239/2002.

6.The total sentence on the applicant is seven years’ imprisonment.

7.The applicant seeks leave to appeal against the sentence out of time. He said, in his supporting affirmation, that he was unfamiliar with the appeal procedure to explain the delay.

8.The offences were all committed within about two weeks between 14 and 26 February 2002. The applicant preyed upon lone pedestrians in the street and robbed/attempted to rob them of valuables.

9.On all, but one occasions, the victims were threatened with knives. Two of the victims were told not to make any noise or else they would be stabbed. One of the victims, a 27-year-old woman was punched on the face causing injuries to her nose and cheek.

10.After the applicant was arrested, the police found two knives on his person.

11.The applicant is a 21 year-old illegal immigrant from the Mainland. It was suggested that he sneaked into Hong Kong by hiding inside a container truck with the view of finding a job. However, he was unable to get in touch with a friend and had to find shelter under a footbridge near the Yaumatei fruit market. When the money he had ran out, he committed the offences.

12.The applicant claimed that the knives he used were originally intended for self-protection against others who had bullied him.

13.Mr. Burkett, on behalf of the applicant, complains that the four-year sentence imposed in HCCC 241/2002 is manifestly excessive when the applicant did not display any weapon during the robbery and the violence used was minor.

14.Mr. Burkett also says the total sentence of 7 years’ imprisonment is manifestly excessive.

15.Although the applicant did not produce any weapon, he did punch the victim on her face. He also threatened the victim not to chase him by taking out something from his pocket.

16.Less than ten minutes after the robbery, the applicant was apprehended and the police found two knives (8 inches and four inches long) on his person.

17.In the circumstances, the fact that the applicant did not actually produce any weapon at the time of the robbery can hardly be relied on to justify any reduction in sentence.

18.The applicant robbed a lone woman and punched her on the face. He took away all her valuables, including over $3,500 in cash.

19.It was of course the 5^th time within two weeks that the applicant committed serious offences of robbery/attempted robbery.

20.We are not persuaded, despite the concession by Ms Shine for the respondent, that the four-year sentence imposed in HCCC 241/2002 is manifestly excessive.

21.In a multi-charge case, particularly when the offences were committed within a short period of time and dealt with by the court at the same time, it is the totality of sentence that is important.

22.The victims were threatened with knives, a serious matter indeed. However, we bear in mind that the offences were committed in public and most of the victims had not been subjected to actual violence.

23.We are persuaded that the total sentence of seven years, on pleas of guilty, is manifestly excessive.

24.In our judgment, the total sentence should be 5 years and 6 months.

25.To give effect to our judgment, we only order one year and six months of the three-year and four-month sentence imposed in HCCC 239/2002 to run consecutively to the four-year sentence in HCCC 241/2002.

26.We grant the applicant leave to appeal out of time and treat the application as the appeal proper. The appeal is allowed to the extent indicated.

Ms Lynda M.A. Shine, SGC of Department of Justice for HKSAR.

Mr Francis Burkett assigned by DLA for the Applicant.