HKSAR v. Mau Hiu Chi

CACC 456/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 456 OF 2004

(ON APPEAL FROM HCCC NO. 249 OF 2004)

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BETWEEN

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Before : Hon Woo V-P, Stock JA and Tong J in Court

Date of Hearing : 1 February 2005

Date of Judgment : 1 February 2005

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.This is an application for leave to appeal against sentence.  On 15 October 2004 the applicant, aged 23 years, pleaded guilty to one count of robbery before Gall J who sentenced him to a term of five years and four months’ imprisonment.  A few days later, the applicant appeared before a magistrate and was sentenced to a term of fifteen months’ imprisonment for the offence of remaining in Hong Kong without authority, having landed unlawfully.  Six months of that term was ordered to run consecutively to the term imposed for the robbery offence, an effective total therefore of five years and ten months’ imprisonment.  However, this application relates only to the sentence imposed for the robbery offence.

2.The facts were these.  At about 8:20 p.m. on 16 May 2004 the applicant entered domestic premises on the first floor at a village in Lok Ma Chau.  The occupants were adults, a male and female.  The applicant brandished an 18-inch metal bar at the lady who proffered $400 from her wallet; but he demanded more and then took from a trouser pocket a broken glass bottle.  He waved the weapons and told the occupants to give him money and said: “Kill you, give money, kill you”.  The lady surrendered her necklace to him, and he took a watch and her handbag, and then fled the same way he had entered, namely, through the balcony door.  About one hour later, he was apprehended by the police and he told them that he had been acting as a lookout.  That suggestion, that he was acting as a lookout, was not pursued at the hearing; the applicant having been identified by the occupants as the robber.  Upon apprehension, some of the stolen items, but not others, were recovered.

3.The judge rejected the mitigation that the applicant was merely seeking some money to satisfy hunger.  He accepted that the applicant had been acting alone.  He said that the offence was aggravated by the fact that the applicant was armed with an iron bar and also with the broken bottle which the judge described as “a very dangerous weapon”.  He said, quite correctly, that the fact that these were domestic premises was an aggravating feature; and he added that the fact that the offence occurred in the evening was also an aggravating factor.  He took a starting point of eight years’ imprisonment and giving full effect to the plea of guilty, he sentenced the applicant to a term of five years and four months’ imprisonment.

4.Mo Kwong Sang v. R (1981) HKLR 610 suggested a starting point of six years’ imprisonment where an armed robbery involved invasion of private premises; and that that starting point might further be increased if that invasion took place during the evening and threats were made to the victim(s).

5.Mr Andrews, who appears for the applicant, has invited the Court to pose the question whether in all the circumstances an increase of three years’ imprisonment over and above the five years starting point normally imposed for an ordinary case of armed robbery was warranted.  We think that that is a valid way of testing the matter in this case, and we think that looked at in that way the starting point of eight years’ imprisonment was too high.  Similarly, Mo Kwong-sang suggested that a robbery and armed robbery which involved invasion of private premises should attract a sentence of about six years’ imprisonment and one could then ask the question in this case whether the added factors that this robbery occurred in the evening, and involved one threat (albeit of a serious kind) warranted an extra two years’ imprisonment; and we think not.  Of course the offence was serious, and warranted a term substantially in excess of the five years starting point for armed robbery, with which Mo Kwong-sang begins its approach.  But we do not think that the facts warrant an addition of yet another three years.  We think that seven years was an appropriate starting point.  That results in a term of four years and eight months’ imprisonment after plea.

6.Accordingly, we grant the applicant leave to appeal against sentence and, treating the hearing of this application as the appeal, we allow the appeal and substitute a sentence of four years and eight months’ imprisonment.  The order made by the magistrate is, of course, undisturbed; so that the total effective term for the two sentences is one of five years and two months’ imprisonment.

Mr Robert Andrews assigned by Director of Legal Aid for Applicant

Ms Mary Sin, SADPP, of the Department of Justice, for Respondent.