HKSAR v. Wong Ching Chiu
Read the full judgment text of CACC 302/2006 on BabelCite. This Court of Appeal judgment was delivered on 16 May 2007 before Hon Tang VP and Barnes J.
Criminal law – robbery – sentencing – appeal – leave to appeal – aggravating factors – premeditation – organized crime – street robbery – Theft Ordinance (Cap 210) s.10 – starting point for unarmed robbery – 4 years – 5 years – HKSAR v. Ng Man Lung – application for leave to appeal against sentence dismissed – sentence of 5 years' imprisonment upheld – victim suffered loss of over $340,000 – violence used – false vehicle plate used – applicant participated in planned robbery with two others – no weapon displayed – applicant received $60,000 – no remorse shown – no valid mitigating factor – starting point: 5 years – final sentence: 5 years' imprisonment.
Legal issues: Appeal against sentence for robbery
Outcome: Application for leave to appeal against sentence dismissed.
Cited by 2 cases · Cites 5 cases
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[English Translation – 英譯本] CACC 302/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 302 OF 2006 (ON APPEAL FROM DCCC NO. 100 OF 2006) ____________ BETWEEN
____________ Before: Hon Tang VP and Barnes J in Court Date of Hearing: 16 May 2007 Date of Judgment: 16 May 2007 _______________ JUDGMENT _______________ Hon Barnes J (giving the judgment of the Court): 1.The Applicant Wong Ching Chiu was the 3rd defendant at trial. He and two other persons (D1 and D2) were jointly charged with one count of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong. The Applicant pleaded not guilty to robbery but admitted to the wounding of the victim as particularised in the charge. The Applicant was convicted after trial and was sentenced to 5 years’ imprisonment. 2.The Applicant applied to the Court of Appeal for leave to appeal against conviction and sentence, but his application was dismissed by Yeung JA on 13 December 2006. The Applicant now applies to the Court of Appeal for leave to appeal against sentence. Prosecution case 3.Mr Ng, the victim herein, was the proprietor of a boutique. One month prior to the offence, D1 became an employee of Mr Ng and, as such, came to know that there were frequent movements of large sums of cash in the course of business of the boutique, that a “reconciliation” of accounts would be carried out every week, and that it was Mr Ng’s usual practice to deposit the cash into a bank near his boutique every Tuesday. D1 had actually helped Mr Ng make deposits. 4.D1 informed her cohabitee (i.e. D2) of the details of such deposits. D2 told D1 that he was going to rob Mr Ng with other accomplices. 5.On the morning of the day of the offence, Mr Ng went to the bank to make a deposit, carrying with him a black carrier bag that contained $400,300 cash, crossed cheques in a total sum of $54,000 and some personal belongings. After Mr Ng had left, D1 received a call from D2 and told him Mr Ng’s movements. When Mr Ng walked past No. 666 Castle Peak Road and was about to go to a newspaper stand to buy newspapers, he was suddenly punched on the head by the Applicant and another person who is still at large. The punch caused him to fall on the ground, and his black carrier bag was snatched. The Applicant and the said other person then boarded a car driven by D2 and left the scene. The Applicant was subsequently given $60,000. Mr Ng sustained injuries in the incident. Defence case 6.The Applicant elected to give evidence. He did not deny that he was one of the two persons who assaulted Mr Ng during the robbery, but he claimed that he merely helped someone hit Mr Ng and he did not witness Mr Ng’s black carrier bag being snatched. Subsequent to the incident, he was given $60,000 being “travelling and general expenses”. Grounds of appeal 7.In his written grounds of appeal, the Applicant said:
8.In his oral submissions, the Applicant stressed that the circumstances of the present case were not as serious as those of other cases, because the victims in the other cases were women who were assaulted, and the victim in one of those cases was even dragged to a rear staircase. In essence, the Applicant contended that the trial judge should not have taken 5 years as the starting point as he had not used any weapon in the case. Reasons for sentence 9.In considering sentence, the trial judge rightly pointed out that the maximum sentence for robbery was life imprisonment. The judge took into account the cases of Mo Kwong Sang v. R. [1981] HKLR 610, R. v. Yau Kwok Tung [1987] HKLR 782 and HKSAR v. Ting Chiu [2003] 3 HKLRD 378. The Court of Appeal has said that the starting point for robbery committed in a public place without displaying any knife or dangerous weapon should be 4 years’ imprisonment, and that cases involving two or more robbers are more serious than cases involving one robber. 10.The trial judge was well aware that no weapon was produced, used or displayed during the robbery. However, he took the view that the present case was more serious than other unarmed robberies. The amount of cash involved in this case exceeded $400,000. Even though some of the stolen money had been recovered, the victim still suffered a loss of over $340,000, which was unlikely to be recovered. Moreover, the present case involved an organised and premeditated robbery as opposed to an “opportunistic” crime in which the offender simply waited for an opportunity to commit an offence in a public place. The robbery in the present case was carefully planned, and a false vehicle registration plate was used as a cover-up. Violence was used during the robbery and the victim suffered pecuniary losses as well as physical injuries. 11.Having considered the above factors, the trial judge held that an appropriate starting point was 5 years. 12.In respect of the Applicant’s case, the trial judge pointed out that the three defendants arrived at the scene together and committed the offence. D2 was the driver, and the three of them were in fact jointly committing the offence, for which they all had to be liable. The Applicant did use violence. Even though he did not physically snatch the victim’s property, his culpability at law was similar to that of the other defendants. The trial judge noted that the Applicant had pleaded not guilty and had not shown any remorse, and in the absence of any valid mitigating factor, the trial judge sentenced the Applicant to 5 years’ imprisonment. Discussion 13.Generally speaking, the starting point for robbery in a public place without displaying a knife or other weapon is 4 years’ imprisonment. Even though the present case did not involve an armed robbery, as the trial judge pointed out, there were a number of aggravating factors. 14.In HKSAR v. Ng Man Lung (吳文龍) CACC 451/2004, the applicant was convicted after trial on one count of robbery and was sentenced to 5 years’ imprisonment. The facts of the case revealed that a staff member of a jewellery company was robbed by the applicant and two other offenders in Causeway Bay when she was taking cash belonging the company to a bank to make a deposit. The applicant was caught at the scene and the stolen property was recovered. In determining the applicant’s application for leave to appeal against sentence, Cheung JA said:
15.The facts of the present case were in fact similar to those in Ng Man Lung except that, when compared with Ng Man Lung in which the robbery was committed by an illegal immigrant, the robbery in the present case was better-planned. Conclusion 16.On the facts of the present case, the sentence imposed on the Applicant is appropriate and consistent with the Court of Appeal’s sentencing guideline for robbery. The application for leave to appeal against sentence is accordingly dismissed. Hon Tang VP: 17.I agree.
Mr Richard Ma, Senior Government Counsel, for the Respondent. The Applicant in person. Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor. |
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