HKSAR v. Fung Ka Fai

CACC000533/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 533
(Criminal)

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

Coram: Hon. Leong and Stuart-Moore, J.J.A. in Court

Date of hearing: 17 February 1998

Date of delivery of judgment: 17 February 1998

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

J U D G M E N T

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

Leong, J.A. (giving the judgment of the Court):

1. The applicant Fung Ka Fai was convicted by his own plea in the District Court of three charges of robbery.

2. The facts admitted by the applicant showed that on 16.3.1997 the applicant together with 1st defendant followed the victim into a lift in an estate building. The 1st defendant produced a knife and threatened the victim; as a result, they struggled. The victim tried to leave but was prevented by the applicant. HK$1000 was taken by the applicant and the 1st defendant from the victim before she was allowed to leave. The second robbery was committed by the applicant alone. He followed the lady victim into a lift in an estate building and when the lift was going up, he threatened the victim with a metal pipe and declared a robbery. The victim took out $220 and gave it to the applicant before she was allowed to leave. The third robbery was also committed by the applicant alone. This was another lift robbery. The applicant followed the lady victim into the lift. After the door was closed, he produced a knife and threatened the victim. He then took her wallet and left the lift when the door opened.

3. No one was injured in these robberies.

4. The judge in sentencing the applicant said that this was clearly a case where a deterrent sentence was called for as lift robberies were becoming more widespread in Hong Kong.

5. The applicant was 20 years old and was a drug dependent with drug convictions. But the judge treated him as a man of clear record. Referring to the guidelines in Mo Kwong-sang on sentencing robbery offenders and Ng Po-wah on sentencing lift robbery offenders, the judge adopted a starting point of 6 years and after giving credit for the plea, she reduced it to one of 4 years on each charge. However, having regard to the principle on totality, she further reduced the sentence on each charge to one of two years but ordered these to run consecutively, making a total of 6 years' imprisonment.

6. The applicant now applies for leave to appeal against sentence.

7. The only grounds of appeal are that the sentences are too heavy and that he was still young at the time of the robbery. On the authorities, we do not think a starting point of 6 years for lift robberies where a weapon has been displayed to threaten the victim is inappropriate let alone manifestly excessive. This follows the guidelines in Mo Kwong-sang. The discount of two years for each charge for the applicant's plea is also correct.

8. There are three robberies committed by the applicant who repeated them within a short period of time and in all these robberies a weapon was used. If one takes a global view in sentencing these robberies, having regard to all the circumstances, a total of 6 years' imprisonment after plea would not be wrong. It is unfortunate that the deputy judge had arrived at the conclusion of 6 years by a somewhat unusual route by imposing a sentence of 2 years on each charge and ordering them to run consecutively. In that way, a sentence of 2 years after plea for a lift robbery involving the use of a dangerous weapon would be indeed a sentence much lower that those set down in the guidelines. If the deputy judge had made part of the 4 years' sentence of each charge to run consecutively so as to make up a total of 6 years that would have achieved the purpose.

9. Be that as it may, as we have said, 6 years in total for all three robberies is neither manifestly excessive nor wrong. We do not in these circumstances interfere with the sentences imposed. The application for leave to appeal against sentence is refused.

Representation:

Mr. K.S. Kripas, SGC for Respondent

Fung Ka-fai, Applicant in person