HKSAR v. Chan Sin Leung

CACC 48/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 48 OF 2006

(ON APPEAL FROM DCCC NO. 1168 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore Ag CJHC and Stock JA in Court

Date of Hearing: 11 August 2006

Date of Judgment: 11 August 2006

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.This is an application for leave to appeal against sentence.  The applicant pleaded guilty in the District Court on 20 January 2006 before Deputy Judge A Yuen, and was sentenced to a total of four and a half years’ imprisonment.  A compensation order was made in the sum of $9,900 with an order that in default of payment an extra two months’ imprisonment would be served.

2.There were three charges of theft and one of robbery.  The modus operandi in relation to each was the same: the applicant would ride a bicycle past an unsuspecting female victim and snatch from around her neck a necklace.  The first offence with which we are concerned took place on 19 September 2005 in the afternoon when a female aged 81 years was walking outside a shopping centre in Yuen Long and the applicant travelled by on his bicycle snatching from her neck a gold necklace with a jade pendant.  This was Charge 1.  The second offence, the robbery, took place in the morning two days later but on this occasion the attempt to snatch the necklace from the victim failed at first and the applicant snatched the necklace with additional force; in other words, he kept pulling on the necklace causing a degree of pain to the victim’s neck and she was left with some red marks there.  The third offence took place on 23 September: another snatching.  The fourth and final event took place on 10 October 2005 when, again on his bicycle, the applicant rode past the victim and snatched from her a gold necklace.  He was arrested the same day and upon his arrest he admitted the offences.

3.What the judge did was to take a starting point of 15 months’ imprisonment in relation to each of the three theft charges and, giving credit for the plea of guilty, imposed a sentence of 10 months’ imprisonment on each such charge.  In respect of the robbery offence, he took a starting point of three years’ imprisonment and reduced it to two years’ imprisonment to give effect to the plea of guilty.  He ordered all sentences to run consecutively, making a total of four and a half years’ imprisonment.  In addition he made the compensation order to which we have referred and said that that payment was to be effected within three months, in default of which the applicant was to serve two further months’ imprisonment.

4.The complaint in relation to the term of imprisonment falls within a narrow compass.  It is that the totality of four and a half years’ imprisonment was manifestly excessive given the pleas of guilty and the fact that the offences were of an identical nature all falling within a short time span.

5.There is one relevant matter to which the sentencing judge did not refer which stands in aggravation of whatever sentence was otherwise appropriate, and that matter is the criminal record of this applicant.  At the date of these offences he was aged 27 years, yet he has accumulated an appalling record including a series of convictions for theft, attempted theft, robbery, and assault with intent to rob.  It is with that factor in mind that we turn to the sentences in fact imposed.

6.No complaint can be made about the individual sentences imposed in relation to the theft offences.  Indeed, we think it would have been appropriate for heavier sentences to be imposed to reflect the aggravating feature that we have identified.  In relation to the robbery offence, that is Charge 2, it might be said that the facts were not a great deal different from those of the theft charges and that the resulting term for that individual charge was high; nonetheless given the aggravating feature to which we have referred it cannot be said to be in itself manifestly excessive.

7.The real question, at the end of the day, comes down to that of totality.  In our judgment a totality of four years’ imprisonment was appropriate.  In the light of the plea of guilty, this too might be thought excessive but given this man’s record, and the fact that he preyed on lone women, one of whom was aged 81 years, we think that a substantial term is warranted, though not the totality that was in fact imposed.  Accordingly, we grant leave to appeal against sentence and treating the hearing of the application as the appeal, the appeal is allowed to this extent: that the sentences in relation to Charges 1 and 2 and 3 will run wholly consecutively one to the other and four months of the sentence in relation to Charge 4 will run consecutively to the rest, the remainder to run concurrently, making a total of four years’ imprisonment.

8.In relation to the compensation order, the point is made that the judge ought not to have ordered the amount to be paid within three months of the date of sentence since there was no prospect of that amount being paid whilst the applicant was in custody.  The judge cannot be faulted in this regard because he made the order upon an express representation by those then representing the applicant that the applicant wished to compensate the victims of these crimes, and that he would do so within three months.  What is now said by the applicant is that although he was willing to pay this sum and thought that he would need three months to raise the money, what he meant was three months from the date of his release from prison.  There was at the date of sentence clearly no prospect whatsoever of him raising that sum in time.

9.Ms Louisa Lai for the respondent, with her characteristic conscientiousness and fairness, makes two points.  The first is that there is no power in law for the court to order a term of imprisonment in default of making the compensation payment: see R v Tang Wan Yau CACC 554 of 1994.  The second is that it is doubtful whether the order should in any event stand given the fact that this applicant appears to have no assets and that the making of this order is likely to encourage him, particularly given his history, to re-offend shortly after his release in order to meet the payment.  We have in the circumstances concluded that the compensation order should be set aside and we so order although we emphasise that in doing so we make no criticism of the sentencing judge.

Mr James McGowan instructed by Simon Si & Co., assigned by D.L.A. for Applicant

Ms Louisa Lai, SADPP of Department of Justice for Respondent