HKSAR v. Zhang Zhigang

CACC 4/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. CACC 4 OF 2005 

(ON APPEAL FROM NO. HCCC 322 of 2004)

_______________________

BETWEEN

______________________

Before: Hon Yeung JA and Burrell J in Court

Date of Hearing: 13 May 2005

Date of Judgment:  13 May 2005

______________________

J U D G M E N T

______________________

Hon Yeung JA (giving judgment of the Court):

1.The applicant, Zhang Zhigang pleaded guilty to a charge of robbery before Deputy Judge Wright (the judge) in the Court of First Instance. He was sentenced to eight years’ imprisonment to run consecutively to an eighteen months’ sentence imposed in a separate case relating to the use of a forged identity card.

2.The applicant now seeks leave to appeal against sentence.

The Facts

3.Public light bus serving Mongkok and Sheung Shui is particularly popular amongst people who finish works in the early morning after train service has stopped.

4.The applicant, together with another, targeted one such public light bus and robbed the driver and all the fourteen passengers in the early hours on 26 October 2003.

5.They used a knife and a pistol like object to frighten the victims. They even carried a fake bomb and placed it near the driver’s seat.

6.The victims were told to surrender all their belongings, including mobile phones, bankcards, cash, documents of identity and other personal items.

7.When one of the victims separately held his wallet and his money in two hands, he was accused of playing tricks and was then punched on his forehead and hit on his parietal area with the butt of the pistol like object, resulting in injuries that required six stitches on his left rear skull.

8.The victims were told to lower their heads and not to look up or play tricks; otherwise they would become “roasted pigs”.

9.Before fleeing, one of the robbers told the driver that there was a bomb and that he should drive on.

10.The police subsequently found a fake bomb in the form of a small carton box with two light emitting diodes connected by pieces of wires to two batteries near the driver’s seat.

11.The applicant was arrested at the Lo Wu border checkpoint on 3 June 2004 when he came to Hong Kong from the Mainland, carrying a forged Hong Kong identity card.

12.The applicant admitted the offence and said he was the robber who held a knife to threaten the victims.

13.In sentencing, the judge described the offence as an act of modern day highway robbery. The judge emphasized that the victims were threatened at gunpoint for ten to fifteen minutes and that the robbers even claimed to have placed a bomb on the vehicle.

14.However, the judge was prepared to sentence the applicant on the basis that the pistol like object was in fact not a real firearm.

15.The violence on one of the victims, according to the judge, would have a frightening effect on the others, particularly when they were threatened with what appeared to be a firearm.

16.The event in a moving vehicle was described as “a recipe for potential disaster”, thus putting the passengers at serious risk.

17.The judge adopted a starting point of twelve years’ imprisonment and reduced it by one-third to account for the guilty plea.

Grounds of Appeal

18.In his written application, the applicant complained that the sentence was too severe, particularly when it was to be served consecutively to the eighteen months’ imprisonment for the identity card offences.

19.The applicant said he was remorseful although he doubted if his remorse had been properly relayed to the judge. He pointed out his personal difficulty and the hardship to his family arising from his imprisonment. He also said the judge might have wrongly thought that he had entered Hong Kong illegally in order to commit crimes.

20.Robbery involving the use of firearm, albeit an imitation firearm, is a most serious offence.

21.In R v Yu Tai Wing [1995] HKLY 482, the defendant, a serving police officer of 20 years’ standing, was convicted of robbery and possession of an imitation firearm at the time of committing the robbery and was sentenced to terms of 10 and 5 years’ imprisonment.

22.On appeal, the overall starting point of 12 years’ imprisonment was considered to be manifestly excessive and that a more appropriate starting point was 10 years’ imprisonment.

23.However, the offence committed by the applicant was much more serious than Yu Tai Wing (supra).

24.It was clearly well planned involving two robbers. The victims were threatened with an imitation firearm and a fake bomb. A large number of victims were targeted and the robbery took place on board a vehicle in the early hours when the victims were most vulnerable. One of the victims was subject to unnecessary violence.

25.Even if the offence did not involve the use of an imitation firearm, the appropriate starting point in accordance with the guidelines laid down in Mo Kwong Sang v R [1981] HKLR 610 would not be less than eight years’ imprisonment.

26.The mere carrying an imitation firearm with intent to commit an arrestable offence normally attracts a sentence of five years’ imprisonment after trial.

27.In the circumstances, the starting point of 12 years’ imprisonment adopted by the judge, albeit not a lenient sentence, cannot be said to be manifestly excessive.

28.The judge was clearly aware that the applicant was lawfully in Hong Kong at the time of the offence.

29.His personal difficulty and the hardship to his family are not significant mitigating factors for offences of this nature. 

30.We are not persuaded that the sentence of eight years’ imprisonment is manifestly excessive.

31.The judge was also entitled to take the view that the identity card offences were separate and hence the sentence should be consecutive.

32.We have considered the matters put forward by the applicant carefully. We are not persuaded that his sentence should be reduced.

33.We therefore refuse the application for leave to appeal against sentence.  

Mr Thomas Law, DPGC of the Department of Justice for the Respondent.

Applicant: In person.