HKSAR v. Lau Po Sing and Another

CACC 95/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 95 OF 2007

(ON APPEAL FROM HCCC NO. 27 OF 2007)

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BETWEEN

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Before: Hon Tang VP and McMahon J in Court

Date of Hearing: 16 August 2007

Date of Judgment: 21 August 2007

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JUDGMENT

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Hon Tang VP (giving the judgment of the court):

Introduction

1.The 1^st and 2^nd applicants were jointly charged with one count of robbery which took place on 13 August 2006.

2.The 1^st applicant was additionally charged with another count of robbery which took place earlier on 1 July 2006.

3.On their pleas, both applicants were each sentenced to 4 years’ imprisonment in respect of the joint count.

4.The 1^st applicant was also sentenced to 4 years on his additional count, 2 years of which were ordered to be served consecutively.  However, his total sentence was reduced by 3 months because of his assistance to the police which led to the apprehension and conviction of the 2^nd applicant.  The 1^st applicant therefore was sentenced to a totality of 5 years 9 months’ imprisonment and the 2^nd applicant to 4 years’ imprisonment.

5.This is their application for leave to appeal against sentence.

The Offences

Charge 1

6.At about 3:55 am on 13 August 2006, the victim, a 19-year-old man, was walking outside Yiu Chak House, Tin Yiu Estate, Tin Shui Wai when the 1^st applicant held him from behind.  The 1^st applicant displayed a knife in his right hand and asked him not to move.  At that time, the 2^nd applicant was standing next to the victim and kept a lookout.  The 1^st applicant robbed the victim of a mobile phone with a value of $1,500, a wallet valued at $500 and an Octopus card.  The victim reported the matter to the police.

Charge 2

7.At about 1:15 am, on 1 July 2006, another victim, a 21-year-old woman, was walking outside the football pitch, Yiu Hing House, Tin Yiu Estate, when the 1^st applicant used his right hand to hold her neck from behind.

8.At that time, the 1^st applicant was holding a knife in his left hand.  He warned her not to make any noise and told her to surrender her wallet and mobile phone.  The 1^st applicant then took off his hand from the victim.  The victim could see that the 1^st applicant was holding a knife with his right hand which was pointing at her.

9.The victim tried to negotiate with the 1^st applicant and asked if she could only give him money.

10.The 1^st applicant asked her to stop being noisy and that she should be quick.  The victim then gave him $150.  After the 1^st applicant had gone, the victim went home and reported to the police.

Arrest of the 1st applicant

11.The 1^st applicant pawned the mobile phone.  The pawnshop gave the identity card number of the 1^st applicant to the police.  As a result, the 1^st applicant was arrested at his home on 15 August 2006.  The Octopus card and the knife used in the robbery were found. 

12.When he was interviewed by the police he confessed and told the police about the 2^nd applicant and on 16 August 2006 led them to the 2^nd applicant’s home where the 2^nd applicant was arrested.

13.When the 1^st applicant was asked by the police about the 2^nd robbery, because the police had reasons to believe that he was involved, the 1^st applicant also confessed.

The applications

14.The 1^st applicant had just turned 18 at the time of the two offences.  He has one previous conviction for possession of dangerous drugs in relation to which he was fined $1,000 in April 2006.

15.The 2^nd applicant was also 18.  He has no previous conviction.

16.According to Deputy Judge E Toh, the defendants had the support of their parents who pleaded for leniency on their behalf.

17.The learned judge followed the guidelines laid down in Mo Kwong-sang v R [1981] HKLR 610, and adopted a starting point of 6 years.

18.She said:

“	… The Court of Appeal had laid down guidelines since 1981, in the case of Mo Kwong Sang, for robbery with an offensive weapon like knives. The standard starting point recommended is one of 5 years’ imprisonment.
	These defendants are aged 18 and they cannot pray in aid their young age because it is not considered a young enough age for the court to take that into account. Furthermore, these are very serious offences that call for deterrent sentences. The aggravating features in this case are the fact that both these robberies were committed in the early hours of the morning. The first offence is further aggravated by the fact that there were two of you committing this robbery, with planning beforehand. Added to that, the 1st defendant is facing two counts of robbery himself.
	Having heard mitigation from both counsel and taking that into account, together with the fact of the circumstances of these robberies, and having seen the knife which is not a common household knife, it is a very vicious knife, I consider that an appropriate starting point in this case on the 1st count would be one of 6 years’ imprisonment. That will be reduced by one-third to 4 years’ imprisonment.”

19.This is what the Court of Appeal said in Mo Kwong-sang:

“	We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.
	If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.
	If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.
	These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.
	These guidelines are intended to apply to those who are convicted after a trial.”

20.Although we regard the starting point as high we cannot say that it was manifestly excessive.

21.The 2^nd applicant, who appeared in person, showed genuine remorse when he addressed us.  He also told us about his aged grandmother and his family circumstances.  He was given the maximum one-third discount for his plea.  Since the starting point of 6 years is not manifestly excessive, we are not entitled to interfere.  That being the case, the 2^nd applicant’s application for leave to appeal must be dismissed.

22.So far as the 1^st applicant and the 2^nd count is concerned, the learned judge also adopted a starting point of 6 years.  Here, as Mr Cheung, counsel for the respondent, has correctly pointed out, there was only one person involved, namely, the 1^st applicant.  So the judge erred when she said:

“	I do not see any difference between this count and the 1st count, so the starting point for this will also be 6 years’ imprisonment, reduced to 4 because of his plea.”

23.But in any event the judge, in our view, also erred when she reduced the totality of sentence she had arrived at by way of the mitigating factor of the 1^st applicant’s assistance to the police.  The more correct procedure is for mitigating factors so far as is possible to be taken into account in the reduction of the starting points of sentences.  It is then that totality of sentence is arrived at.

24.Because of that error of principle we will approach sentencing afresh.

Assistance to the Police

25.The only mitigation available to the 1^st applicant apart from his plea is the assistance he gave to the police in the arrest of the 2^nd applicant.

26.On the facts of this case, it appears that had the 1^st applicant not told the police of the 2^nd applicant, the 2^nd applicant would have got off scot-free.  In the Summary of Facts, it was stated that the 1^st applicant was positively identified by the victims.  We infer that the 2^nd applicant had not been identified by the first victim.

27.In Z v HKSAR [2007] 1 HKLRD 977, the Court of Final Appeal had this to say of the practice of the Court of Appeal in such cases:

“

23.

The Court of Appeal is well placed to consider the range of reductions of sentence for co-operation with the authorities. It has used various percentages of discount for different degrees of assistance.  It has applied a usual discount of 40% (including the one third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information.  HKSAR v Y [2005] 3 HKC 337 at p.340.  (Compare its earlier decision in HKSAR v Ng Shek Yu (unrep., CACC No 178 of 2000, [2001] HKEC 243) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.)  Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one third reduction for pleading guilty).  HKSAR v Lee Yat Fan (unrep., CACC 414 of 1999, [2001] HKEC 662).  Where the level of co-operation is such as to place the appellant in the ‘supergrass’ category, a maximum discount of two-thirds has been used.  R v Chan Fu Kui [1986] HKLR 967 at p.968, HKSAR v Ng Shek Yu (at p.3).”

28.In HKSAR v Jocelyn Sanchez Badua and Anor, CACC 327 of 2006, in a case involving international smuggling of a large quantity of dangerous drugs, this court regarded a discount of 45%, where the defendants assisted the police in making a further arrest, as appropriate.

29.Mr Kwan, appearing for the 1^st applicant, contended that a discount of between 45% and 50% should be given.

30.We do not regard 50% to be appropriate.  The 1^st applicant had not given evidence against the 2^nd applicant.  Moreover, what discount should be given must depend on all the circumstances, including an assessment of the risk which the informer might have incurred as a result.

31.Here, the 1^st applicant led the police to the 2^nd applicant.  It may be that confrontation led to the 2^nd applicant’s plea.  But in the circumstances of this case, we believe a discount of 40% to be appropriate.  Rounding it down to the nearest month, that results in a sentence of 3 years and 7 months in respect of the 1^st charged offence.

32.In a suitable case, the discount could be applied to all the offences with which the defendant was charged.  But since only some of the sentence for the 2^nd count would be served consecutively, in substance, it is the total sentence which is important.

33.For the 2^nd count, the starting point should be 5 years.  With his plea, that is reduced to 40 months.  Having regard to our view on totality, we will not consider any further discount.

Totality

34.The judge ordered that 2 years under the 2^nd count should be served consecutively.  We would reduce it to 1 year.  In our view in the circumstances of this case a 1-year consecutive sentence properly reflects the overall culpability of the 1^st applicant.

Conclusion

35.We grant leave to appeal, and treating the hearing of the application as the hearing of the appeal, we allow the 1^st applicant’s appeal and substitute a sentence of 3 years and 7 months for the 1^st count and 40 months for the 2^nd count, 12 months of the latter are to be served consecutively.

Mr Cheung Wai Sun, DPGC, and Ms Agnes Chan, SGC, of the Department of Justice, for the Respondent.

Mr Kwan Tong Lee, instructed by Messrs Au Yeung, Cheng, Ho & Tin, assigned by Director of Legal Aid, for the 1^st Applicant (D1).

The 2^nd Applicant (D2), in person, present.