Case Document

100%Judiciary

[English Translation – 英譯本]
CACC 464/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 464 OF 2007

(ON APPEAL FROM DCCC NO. 605 OF 2007)

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BETWEEN
	HKSAR	Respondent
	and
	LAM CHUN NAM (林俊南)	Applicant

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Before: Hon Tang VP, Yuen JA and Tong J in Court

Date of Hearing: 15 August 2008

Date of Judgment: 15 August 2008

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J U D G M E N T

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

1.In the small hours of 28 September 2002, the victim was transporting 7 cardboard boxes of 1,050 brand new “Samsung” mobile phones (“the stolen property”), which were worth HK$1.7 million. When he reached the open area between Ka Fai House and Ka Yeung House of Ka Shing Court, Fanling, he was intercepted by a total of about 8 men (one of whom being the applicant herein), who fisted him and kicked him and tied him up with black plastic strips. The gang of robbers then robbed the stolen property and fled.

2.After trial before Deputy District Judge Sham, the applicant was convicted of the offence under section 10 of the Theft Ordinance, Cap. 210, and was sentenced to 6½ years’ imprisonment.

3.The applicant now applies to this Court for leave to appeal against sentence.

4.Deputy Judge Sham explained how he arrived at the sentence, as follows:

“5. In the absence of evidence to show that the offenders had used weapon in the course of robbery, I classify the present offence as a robbery not involving the use of weapon. That said, there are aggravating features in the present case. The victim was fisted and kicked by about 8 men. First, in my view it was simply unnecessary to use this kind of force on one victim when there were as many as 8 culprits. Furthermore, the injuries sustained by the victim were by no means minor. His forehead was lacerated and the wound had to be sutured. He also suffered different kinds of injuries on various parts of his body. Although he was discharged from the hospital on the same day, it does not mean that his injuries were not serious.

6. On the facts of this robbery in which the defendant took part, I first of all regard it as a robbery not involving the use of weapon. However, in view of the fact that he committed the offence together with others, I adopt 4 years as the starting point. To this, I add 1½ year on account of the harm done to the victim, and another one year in light of the fact that the value of the stolen property involved is approximately $1.7 million. The total term of imprisonment is 6½ years.”

5.As early as in 1981, in the case of Mo Kwong Sang v R [1981] HKLR 610, the Court of Appeal had already laid down sentencing guidelines for the offence of armed robbery:

“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. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

6.Furthermore, in the case of HKSAR v Ting Chiu & another [2003] 3 HKLRD 378, which involved four unarmed persons robbing a married couple who were having a walk at night, the Court of Appeal held that the appropriate starting point was 4 years. Likewise, in HKSAR v Lam Ka Hung CACC 294/2003, the Court of Appeal also adopted a starting point of 4 years for an unarmed robbery.

7.In Ting Chiu,four unarmed culprits robbed a married couple who were hiking. The Court of Appeal considered a starting point of 4 years appropriate. Similarly, in Lam Ka Hung, which involved a robbery where no weapon was displayed, the Court of Appeal accepted 4 years’ imprisonment as the appropriate starting point. In neither of these two cases did the offenders display any weapon or harm any person.

8.Finally, in Secretary for Justice v Au Chi Hang & Others [2006] 2 HKLRD 310, the Court of Appeal confirmed that a gang robbery, a robbery committed in the small hours, the use of violence and the infliction of injuries upon the victim are aggravating factors which justify an enhancement of sentence. (See paragraphs 48 and 49 of the Judgment)

9.In light of the above, we see nothing improper for the trial judge to adopt, as he did, a starting point of 4 years.

10.We also consider it reasonable for the trial judge to enhance the sentence by 1½ year on account of the injuries sustained by the victim. As mentioned in Mo Kwong Sang, the use of violence on the victim by the defendant, including the tying up of the victim, and a robbery involving a gang of robbers, are factors for enhancing the sentence. The present case involves as many as 8 offenders, who had inflicted violence on the victim and tied him up. In our view, therefore, it was reasonable to add 1½ year to the starting point of 4 years.

11.The trial judge further enhanced the sentence by one year on account of the value of the stolen property at HK$1.7 million. On this point, although the value of stolen property is not necessarily irrelevant for sentencing purposes, the Theft Ordinance expressly provides as follows:

“10. Robbery

(1) A person commits robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. ”

12.This shows that the focus of the offence of robbery is on force. Generally speaking, therefore, the pecuniary loss suffered by the victim is a secondary sentencing consideration. The sentences should normally be the same no matter whether the victim only had 5 dollars on him or was wearing a gold wristwatch worth $100,000.

13.Furthermore, where a robbery involved substantial property, it usually also involved a gang of robbers and the use of weapon or force. As these are both aggravating factors, it is normally unnecessary for the court to further adjust the sentence by reference to the value of stolen property.

14.In our view, the above reason may serve to explain why none of the cases referred to above specifically referred to the value of the robbed property as a sentencing consideration.

15.In all the circumstances of the present case, we take the view that an overall sentence of 5½ years’ imprisonment is more appropriate for the applicant and that the term of 6½ years is manifestly excessive. Accordingly, we allow the applicant’s application for leave to appeal and, treating the application as the appeal proper, allow the appeal and reduce the term of imprisonment from 6½ years to 5½ years.