HKSAR v. Chan Pak Hung

CACC 404/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. OF 200

(On Appeal From High Court Criminal Case No. 92 of 2006)

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BETWEEN

Before : Hon Cheung JA and McMahon J in Court

Date of Hearing : 18 May 2007

Date of Judgment : 18 May 2007

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

1.The applicant pleaded guilty before Deputy High Court Judge Derek Pang to two charges of robbery.  He was sentenced to six years’ imprisonment.  He now seeks leave to appeal against sentence. 

Facts

2.The evidence showed that in relation to the first charge the applicant and another defendant (the 2^nd defendant) entered a Circle K Convenience Store shortly before 5 o’clock in the morning on 17 January 2006.  The applicant grabbed the cashier’s neck, pointed a 12” long chopper against her waist and said, ‘Robbery, don’t move, don’t shout, open the cash register.’.  The cashier complied with the order and opened the cash register.  The 2^nd defendant together with the applicant took the cash from the cash register.  At this stage two police officers entered the store.  The 2^nd defendant then walked slowly out of the store when the cashier shouted robbery.  The two officers thinking that the 2^nd defendant was the only robber gave chase but the 2^nd defendant managed to escape.  The applicant also managed to leave the store when the officers chased after the 2^nd defendant.  A sum of $850 was stolen from the store. 

3.In respect of the second charge the applicant together with two other defendants (namely, the 2^nd and 3^rd defendants) entered the same store shortly before 3 o’clock in the morning on 1 March 2006.  The 3^rd defendant pointed a fruit knife with a 8” long blade at the cashier and declared robbery and asked her to open the cash register.  The applicant helped the 3^rd defendant to take cash from the cashier.  The 3^rd defendant also stole cigarettes and cigars from the shop.  The 2^nd defendant acted as a lookout at the entrance of the store. 

The sentence

4.In relation to the first charge the judge took a starting point of six years’ imprisonment and reduced it by one third because of the guilty plea and arrived at a sentence of four years’ imprisonment.  He adopted the same approach in respect of the second charge.  In view of the separate offences he ordered two years of the second sentence to be served consecutive to the four years under the first sentence, making a total of six years’ imprisonment.

Mo Kwong Sang

5.The six years’ imprisonment for each of the robbery charges imposed by the judge was in accordance with the guideline set out in R v. Mo Kwong Sang [1981] HKLR 610.  Both robberies involved the display of knives.  More than one robber were involved in each of the robberies and the offence took place in the early morning.  The applicant was involved in two separate offences.  The judge was again right in principle to order part of the sentence of the second offence to be consecutive to the first sentence.

Young age and clear record

6.The only thing that can be said on behalf of the applicant is that at the time when he committed the offence he was at a relatively young age of 18.  While the other two defendants were also aged 18 and 19 respectively, the applicant unlike them has a clear record.  The 2^nd defendant has one previous conviction for attempted theft while the 3^rd defendant has nine previous convictions including one for robbery. 

7.The judge while recognising that the applicant has a clear record imposed the same sentence on the applicant and the 2^nd defendant in respect of the two charges.  The 3^rd defendant was, of course, not involved with the first charge but again in respect of the second charge, the judge imposed the same sentence of four years’ imprisonment against the applicant and the two other defendants. 

Our view

8.In our view in light of the relatively young age of the applicant, his clear record prior to the present offence and that he has to serve a substantial period of imprisonment for his first conviction, we are of the view that justice can be tempered with mercy and his sentence can be slightly adjusted downwards without breaching the correctness of the sentence.  In our view six months can be reduced from the final sentence of six years’ imprisonment, resulting in a sentence of five years and six months.  This is to be achieved by ordering one and a half years of the second sentence of four years’ imprisonment to be consecutive to the first sentence. 

9.Accordingly, we will allow the application, treat the application as the appeal proper and reduce the sentence to five and a half years’ imprisonment. 

Ms Louisa Lai, SADPP, of Department of Justice, for the Respondent

Applicant, in person, present