HKSAR v. Li Siu Wah

CACC 389/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 389 OF 2008

(ON APPEAL FROM DCCC NO. 509 of 2008)

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Before:   Hon Stuart-Moore VP and Yeung JA

Date of Hearing: 21 April 2009

Date of Judgment: 21 April 2009

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.Li Siu-wah (the applicant) was 63 years old when he was sentenced by District Judge S. D’Almada Remedios to 5 years’ imprisonment for two robberies and a theft involving the same elderly lady victim in the space of a week (charges 2 to 4 inclusive) and for the robbery of an 80-year-old man two months earlier (charge 1). The applicant contested all the robbery charges but pleaded guilty to the charge of theft.  He now seeks leave to appeal against the totality of his sentence.

2.The robbery in the 1^st charge occurred on 9 March 2008 as the victim was trying to find his keys to let himself into his block of flats.  The applicant pressed the victim towards him from behind, covered his eyes and stole his wallet.  As to this the judge imposed a 3-year sentence.  No complaint is made in this application about that sentence.  It was accepted that this was appropriate, after trial, for an unarmed robbery of this kind.

3.The victim of the two robberies and a theft (in charges 2 to 4) was a 73-year-old woman who had been targeted by the applicant as someone who was plainly not able to put up any resistance.  The offences took place on 8, 13 and 15 May 2008. 

4.In the robbery, the subject of the 2^nd charge, the applicant asked to see the victim’s gold ring saying that it looked “very pretty” and, when she refused to show it, the applicant grabbed her hand and forcibly took it.  The judge imposed a 3½-year sentence on this charge.

5.The applicant found the victim five days later in much the same location and made an excuse to look into her handbag.  He then stole $5,000 and fled.  This theft, the subject of the 3^rd charge, resulted in the judge taking a starting point of 2 years’ imprisonment and reducing this to 16 months’ imprisonment to reflect the guilty plea.  No complaint is made about this sentence.

6.The 4^th charge related to the robbery of the female victim in the same street as the two previous offences.  As the applicant held the victim’s hand and stole from her handbag, his actions were observed by a police officer.  The judge imposed a sentence of 3½ years’ imprisonment for this offence.

7.The applicant came before the court described as having been a heroin addict for over 40 years.  It was stated that the reason he had committed these offences was to enable him to purchase drugs.  The applicant’s record spoke for itself.  He had previously come before the courts on over forty occasions, mostly for drug-related offences, but amongst the offences were several convictions for burglary and numerous convictions for theft.  It may well be, therefore, that the reason he had committed those earlier offences of dishonesty was to maintain his drug habit.  This would provide a reason for the applicant’s persistent acts of dishonesty but that is not to say that the reason was a good excuse.  It was not.

8.When sentencing, the judge took into account the various factors urged on the applicant’s behalf by Ms Anita Ma, who also appears in these proceedings, particularly the fact that no injuries were incurred by the victims, that no weapons were used and that the value of the property stolen by the applicant was comparatively small. 

9.All in all, the judge described these robberies, in terms of their gravity, as being at the “lowest end”.  Having said that, she rightly expressed her concern that the applicant had preyed on elderly victims who were unable to fend for themselves and had targeted them knowing they were “easy prey”.  The judge, having recognized that the guidelines in Mo Kwong-sang v R [1981] HKLR 610 were not applicable to a case in which no weapon had been used, said:

“Most distressing about this case is that you deliberately targeted PW2, a frail old lady, on three separate occasions … In my view, you deserve no mercy for … stealing her money [and] her sentimental ring …”

10.Having then taken totality into account, the judge ordered that 6 months of the sentence imposed on each of charges 1, 3 and 4 should run consecutively to the 3½-year sentence on charge 2, making 5 years’ imprisonment in all.

11.In these proceedings, it was submitted that a sentence of 3½ years’ imprisonment on charges 2 and 4 was “too high” and that an overall sentence of 5 years’ imprisonment failed to take the totality principle sufficiently into account.

12.In our opinion, the 5-year sentence was entirely appropriate.  The applicant has obviously learnt nothing from his numerous terms of imprisonment and his persistence in the commission of these particular offences could only have been properly dealt with in the manner adopted by the judge, namely, by imposing partially consecutive sentences.  We consider also that the 3½-year sentences on charges 2 and 4 were amply justified in view of the circumstances in which they were committed.  These were utterly despicable, repeat offences of robbery, both directed at the same defenceless old lady.  When even the elderly and very frail are unable to escape the attention of the applicant’s criminal activities, it has to be said, as the judge obviously recognized, that the time has finally arrived for the law-abiding community to be given a rest from the applicant’s persistent offending.  The imposition of a substantial sentence was entirely appropriate.

13.We are satisfied, therefore, that the individual sentences and their overall effect cannot be described as manifestly excessive, particularly bearing in mind the seriousness of the offences and the fact that the applicant has shown no remorse in regard to three out of four of these distressing crimes.  As a result, he had no entitlement to any discount on the sentences in respect of the three charges he contested at trial.

14.Accordingly, the application is dismissed.

Mr Edmond Lee, SPP, of the Department of Justice, for the Respondent.

Ms Anita Ma, instructed by Director of Legal Aid, for the Applicant.