HKSAR v. on Ling

CACC386 /2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL 386 OF 2004

(ON APPEAL FROM DCCC No.757 OF 2004)

______________________

BETWEEN:

Before: Hon. Yuen JA and Lugar-Mawson J in Court

Date of hearing and judgment: 21 December 2004

Date of Reasons for Judgment: 4 January 2005

--------------------------------------

REASONS FOR JUDGMENT

----------------------------------------

Hon. Yuen JA (giving the reasons for judgment of the court):

1.This was an application for leave to appeal against sentence.  At the conclusion of the hearing, we gave leave to appeal and treated the hearing of the application as the hearing of the appeal proper.  We allowed the appeal, quashed the sentence imposed by the trial judge and exercising our powers under s.83I (3)(b) of the Criminal Procedure Ordinance Cap. 221, imposed a sentence of 32 months on the Appellant for the offence of robbery.  We indicated that we would reduce the reasons for our decision into writing and hand down the reasons in due course.  We do so now.  

2.On 23 August 2004, the Appellant pleaded guilty before HH Judge Day to one charge of robbery and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.  He was sentenced to a term of imprisonment of 40 months for the 1^st offence and a term of imprisonment of 15 months for the other offence, to be served consecutively.

3.Although the original grounds of appeal indicated that the Appellant was seeking to appeal the sentences for both offences, counsel for the Appellant has confined the appeal to the sentence on the robbery charge only.

4.The facts of the case were, briefly, that the Appellant had entered Hong Kong illegally on 9 June 2004.  The following evening, he and the co-defendant were at a bus stop in Tai Po.  When a person ("the victim") approached the bus stop intending to wait for the bus, the Appellant pointed a roll of newspapers at the victim’s stomach and declared his intention to rob.  The victim (a 45 year-old man) fell to the ground out of fright dropping his bag, the co-defendant took the bag and the Appellant then fled.  They were caught by the police soon afterwards.  There were no weapons in the roll of newspapers.

5.The Appellant pleaded guilty.   In his Reasons for Sentence, the judge accepted that no weapons were in fact used but adopted the starting point of 5 years applicable to robberies where weapons were in fact produced, because the Appellant pretended he had one and made the victim think that he did.  The judge also regarded as aggravating factors the fact that the robbery took place on the day immediately after the Appellant had entered Hong Kong and that there were two robbers involved.  He also took into account the fact that the victim had been so frightened he collapsed onto the ground.  However the judge put into the balance against the aggravating factors the fact that no knife had actually been used and concluded that he should adopt a starting point of 5 years which, after the usual discount for a plea of guilty, was reduced to 40 months.

6.In referring to the starting point of 5 years for robbery involving the display of a weapon (excluding firearms), the judge was obviously referring to the sentencing guidelines for robbery set out by this  court in Mo Kwong-sang v R [1981] HKLR 610 and affirmed more recently in Secretary for Justice v Ma Ping-wah [2000] 2 HKLRD 312. 

7.Counsel for the Appellant submitted that this was not appropriate, as this court has said that the starting point for an unarmed robbery should be lower than that for an armed robbery of the kind envisaged in Mo Kwong-sang (HKSAR v Ting Chiu [2003] 3 HKLRD 378).  This court had in R v Yau Kwok-tung [1987] HKLR 782 held that a sentence of 4 years was at the top end of the tariff for a robbery where weapons were not displayed, but which occurred at night and where the victims were frightened.  

8.The issue is whether this case should be regarded as a robbery where a weapon was displayed, although it turned out to be no more than a prop.

9.It is of course true that the victim had been frightened by the prop, but the fact remains that the roll of newspapers was not a weapon and did not conceal one.  The victim was never at risk of any physical harm from its use.  In our view, if the same sentence is given whether a knife is displayed or where a roll of newspapers is displayed albeit as a dummy weapon, there would be little disincentive to the actual use of a knife.

10.Counsel for the Respondent referred us to R v Bentham [2004] 1 Cr App R 37 487 where during the course of a robbery, the defendant had his hand in his pocket and pointed his fingers so as to create the impression that he had a gun.  The English Court of  Appeal held that the fingers were capable of being an “imitation firearm” within the meaning of the Firearms Act.  The court adopted a purposive approach to the interpretation of the Act which sought to afford protection to the public who were put in fear by what they reasonably believed to be a firearm or imitation firearm. 

11.However that case was concerned with what was capable in law of being an “imitation firearm” for the purposes of the Firearms Act.  That is different from the present case which was concerned with whether the Appellant should have been sentenced on the basis that he had displayed a weapon. 

12.Further, counsel for the Respondent fairly conceded that the facts of this appeal were different from cases where imitation firearms were displayed in the course of robberies of banks or jewellery stores.  This robbery took place at a quiet bus stop at night in Tai Po.  It was a very different scenario from those contemplated in cases like R v Yu Tai Wing [1995] 1 HKC 837 where this court has held as a matter of policy that no distinction in sentence should be drawn between cases where genuine firearms are displayed (but not discharged) and cases where only imitation firearms are displayed.  Macdougall VP held:

"Obviously the risk that a loaded genuine firearm carried by a robber might be discharged in the course of such robbery does not exist where the robber is armed with an imitation firearm.  But the chance that the police or security guards who are called to or happen upon the scene might open fire in the course of such robberies cannot be overlooked.  The risk of innocent bystanders being killed or injured is always present in circumstances where decisions have to be made in split seconds".   

13.That rationale does not apply in the present appeal.  In our view, this case should not be regarded as an armed robbery and the guidelines in Mo Kwong-sang are not appropriate.  Given the other aggravating factors that the judge had referred to, this case should be regarded as one at the top of the tariff for unarmed robberies where victims are frightened and for which a starting point of 4 years is appropriate.  This would translate into a sentence of 32 months after taking the plea into account.

14.Accordingly, we allowed the appeal, quashed the sentence imposed by the judge and imposed a sentence of 32 months on the Appellant for the offence of robbery.  His total sentence is therefore now 47 months.

Mr Andy Hung instructed by the Director of Legal Aid for the Appellant

Miss Louisa Lai, Senior Assistant Director of Public Prosecutions, for the Respondent