HKSAR v. Chow Tat Hi Peter

CACC 60/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 60 OF 2005

(On Appeal From High Court Criminal Case No. 325 of 2004)

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BETWEEN

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Before : Hon Cheung JA and Hon Lugar-Mawson J in Court

Date of Hearing : 14 July 2004

Date of Judgment : 14 July 2004

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

Leave to appeal against sentence

1.The applicant pleaded guilty in the magistrates’ court in committal proceedings to two offences namely, attempted robbery and possession of an imitation firearm at the time of attempting to commit a robbery.  The case was transferred to the High Court for sentence. He was sentenced at the Court of First Instance by Deputy High Court Judge Wright to a term of 8 years’ imprisonment for the first offence and 6 years’ imprisonment for the second offence.  Both sentences were ordered to be served concurrently. 

2.The applicant now applies for leave to appeal against the sentences. 

Facts

3.The agreed facts revealed that on 12 July 2004 the applicant covered his face with a supermarket plastic bag with two eye-holes cut out and used a toy gun in order to rob a mahjong school.  At that time, there were workers inside the mahjong school and the applicant used the gun to threaten them.  As he was ordering one of the workers to take out the money from the cashier’s counter, that worker realised he was carrying an imitation pistol and ignored his demand.  The applicant then tried to reach the cashier’s counter himself. As he was doing this he was overpowered by five other members of staff.  The police also came to the scene in response to the call for help by one of the workers who had fled the premises. The applicant was arrested.  Three of the staff members were slightly injured during the struggle with the applicant. 

The starting points

4.In respect of the attempted robbery, the judge used a starting point of 12 years and in respect of the possession of an imitation firearm, a 9 years starting point was used.  He gave a one-third discount for the applicant’s guilty plea, reduced the two sentences to 8 years and 6 years respectively. 

5.The complaint of the applicant is that the sentences are manifestly excessive. 

The approach

6.The approach of the court in dealing with the use of imitation firearm in a robbery has been stated by this Court (per Stuart-Moore, Acting CJHC) in Secretary for Justice v. Li Man Biu (CAAR No. 4 of 2000) as follows :

‘

It is unnecessary to review the cases to which we were referred in any detail. It has long been the policy of the courts to put offences of the kind where firearms, real or imitation, are used in an extremely grave category and to mark the gravity of those offences by deterrent sentences. When an imitation firearm is used to frighten victims in the furtherance of robbery as it was in the present case, as opposed merely to being carried for some unlawful purpose, or carried during the course of an actual robbery, this will inevitably be an aggravating factor. In Yu Tai-wing (above), [R v. Yu Tai Wing [1995] 2 HKCLR 119] an overall starting point of ten years' imprisonment was considered appropriate where an opportunist robber embarked on his enterprise alone and in a public place, causing no injury to his victim. In Wong Chi-fai (above) [R v. Wong Chi Fai & another CACC280 of 1996], a twelve-year starting point was described as unobjectionable where two robbers, using an imitation firearm and a long knife between them, had tied up their victims in the course of robbery.’

7.The first thing to note from the judgment is that the sentence to be imposed in this type of cases is already intended to be a deterrent sentence.  The rationale for not drawing any distinction between real firearms and imitation firearms has been stated by this Court in R. v. Yu Tai Wing per Macdougall VP :

‘

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 by-standers being killed or injured is always present in circumstances where decisions have to be made in split seconds.’

Attempted robbery

8.In the present case, although the applicant was charged with the offence of attempted robbery and not actual robbery, we agree with the judge that this would make no real difference to the sentence because the applicant would have carried out the robbery had it not been for the courage of some of the staff members. 

Nature of the case

9.Looking at the nature of the case we are of the view that the case falls within the first category of case discussed in Li Man Biu which called for a sentence of 10 years’ imprisonment.  Although the applicant did try to disguise himself with a made shift mask and carried with him a false gun, it was, as accepted by the judge, not a well-planned robbery.  It was a crime committed by an opportunist robber acting alone.  While the applicant had grasped the neck of one of the female workers which was shaken off by her, basically very little violence was used during the attempted robbery.  The slight injuries sustained by the workers occurred during the struggle when they tried to overpower the applicant. 

Previous convictions

10.What probably caused the judge to adopt a 12-year starting point was the criminal convictions of the applicant.  He has a lengthy criminal record. He was brought to court on 14 occasions with 26 convictions. He was born in September 1954.  He first got in trouble in 1973 when he committed the offence of possession of dangerous drugs.  Between January 1974 and April 1982 he committed four robberies, one theft and 12 burglaries (he pleaded guilty to all the burglaries on the same date).  He was sentenced to 8 years in April 1982 for the last robbery offence.  Between December 1998 and December 2003 there were seven other convictions but these were of a minor nature.  

11.The court clearly has power to impose a deterrent sentence against a repeated offender, see HKSAR v. Takeda [1998] 1 HKLRD 931 and HKSAR v. Tam Kam-mum CACC 327 of 2001.  However, given the fact that the more serious offences were all committed prior to April 1982, we do not consider that the starting point should have been effectively enhanced by as much as two more years so as to bring it within the more serious category of cases which attracted a 12 years’ imprisonment as discussed in Li Man Biu. 

Our decision

12.We are of the view that an overall sentence of 7 years’ imprisonment is appropriate for this case. 

13.Accordingly, for the first sentence, we will adopt a starting point of 10½ years’ imprisonment, discounted it by one third because of the guilty plea and the sentence to be imposed is an imprisonment of 7 years.  The second sentence is not disturbed.  Both sentences are to be served concurrently. 

14.We, therefore, allow the application and treated it as the appeal proper.  The appeal is allowed.  The first sentence is substituted as indicated above.

Ms Lily Wong, SGC of Department of Justice for the Respondent

Mr. Shaun Kelly, instructed by Messrs. Cheng & Wong for the Applicant