R. v. Chan Kwok Fai

CACC000499/1996

IN THE COURT OF APPEAL

1996, No.499

(Criminal)

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Coram: Hon. Power, Ag. C.J., Bokhary & Mortimer, JJ.A.

Dates of hearing: 19 and 27 February 1997

Date of judgment: 27 February 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter faced one count of robbery. That count is particularized as follows: that he and Lau Chi-chung ("Lau") on 5th June 1991, at 309-311 Lockhart Road, 10/F, robbed Sit Lau-ki of two gold finger rings and Sit Pak of one gold finger-ring, $950 cash, a ball pen and a wrist watch. He pleaded guilty to that charge.

2. The facts revealed that at about 5 p.m. on the day charged the first victim, Madam Sit, went from her premises to an altar outside the main door. Both the iron grille and the main door were left open. The second victim, Mr. Sit, Madam Sit's brother, arrived at about that time and entered the premises. The applicant and Lau then approached Madam Sit and pushed her into the premises, Lau produced a paper cutter and announced that they were there to rob. Lau then told the victims not to move saying that they are only after money. The applicant pushed Mr. Sit into a bedroom while the other male threatened Madam Sit with the paper cutter. The victims were pushed into the bathroom, tied up and were later pushed onto a bed. Mr. Sit's wallet, ring and the watch were removed as were Madam Sit's gold and platinum rings. The door of the bedroom was then closed and the premises were searched. Fortunately the Filipino maid had been inside the kitchen of the flat when the robbery commenced and was able to leave the premises by the backdoor and report to the police. The police arrived shortly thereafter and apprehended both of the offenders.

3. Those facts were admitted and, as Judge Hawkes stated, they must be regarded as serious. He said:

"The victims were threatened with a paper cutter and were tied up. There was also an invasion of private premises. According to Mo Kwong Sang's case, such facts should attract a starting point for sentence of 6 or even 7 years' imprisonment."

When Mo Kwong-sang's case (1981) HKLR at 610, is looked at, it will be seen that for offence of robbery that involves a knife or other dangerous weapon where there has been an invasion of private premises and where violence including tying up the victims had been used the appropriate sentence is one of seven years. It would have been more helpful if the judge, rather than indicating "a starting point for sentence of 6 or even 7 years," had been specific in his indication in that regard. We are satisfied that the appropriate starting point was seven years.

4. The judge went on to say:

"I have the benefit of submissions on behalf of the accused by Miss Chan, who has urged that I deal with the accused as leniently as possible. The accused does deserve credit for his plea of guilty. On the other hand, as he did not plead guilty at the earliest opportunity and even absconded, he should not be entitled to a full discount. Also, according to Miss Chan, the accused did surrender himself to the police."

Having taken those matters into account he sentenced the applicant to imprisonment for five years. It is from that sentence that the applicant seeks leave to appeal. He has told this court that he is remorseful and that he considers that a greater discount should have been allowed. He has suggested the trial judge failed to take into account that he had surrendered himself and that he and his family underwent considerable suffering while he was on the run. This can hardly assist him as clearly he brought those sufferings upon himself and his family by absconding. He could have faced the consequences of his crime but he sought not to do so. He says that he has now reformed himself and asks us to take that into account. He states also that he gave information to the police which assisted them in their investigation of a murder case. That is not borne out by the police record to which Mr. Saw, who appears for the Attorney, has referred today. He says the information given did not advance the matter any further.

5. The trial judge took into account the plea of guilty. He noted, however, that it was a late one and that the applicant had absconded before surrendering himself. Given what had occurred he was satisfied that a discount of between a quarter and one-third was appropriate and he therefore reduced the sentence from one of seven years to one of five years. We cannot find fault with this approach. It was a proper one in all of the circumstances and the application for leave to appeal against sentence must, therefore, be refused.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the Respondent.

Applicant in person.