HKSAR v. Chan Wing Yau

CACC 352/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 352 OF 2008

(ON APPEAL FROM DCCC No. 797 of 2008 )

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BETWEEN

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Before: Hon Stuart-Moore VP, Stock and Yeung JJA

Date of Hearing:   20 March 2009

Date of Judgment:  20 March 2009

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

The Facts

1.On 19 January 2007, the applicant (Chan Wing-yau) and his accomplice robbed a fashion shop in Cheung Sha Wan. The applicant, holding a fruit knife, entered the shop and declared robbery while his accomplice acted as a lookout. The applicant pushed the female shopkeeper’s head against the wall and took, from a drawer, $11,500, RMB1,500, US$500 and a mobile phone.

2.The applicant accidentally injured himself in the course of the robbery and was bleeding. Subsequent DNA evidence linked the applicant to the robbery and led to his arrest on 21 January 2008. Under caution, the applicant admitted that he robbed the fashion shop with a friend.

3.On 15 October 2008, the applicant appeared before Deputy District Judge R Chan and, after pleading guilty to the charge of robbery, was sentenced to 40 months’ imprisonment.

4.The judge, referring to R v Mo Kwong Sang [1981] HKLR 610, and saying, “for an offence of robbery committed with the use of a weapon, the usual starting point is one of 5 years’ imprisonment”, adopted the starting point of 5 years. The judge then reduced the 5-year starting point by one-third to 40 months on account of the applicant’s guilty plea.

5.The applicant was then already serving a 40-month sentence imposed in DCCC 1184/2007. The judge ordered 10 months of the 40 months’ imprisonment to be served concurrently to the 40-month sentence imposed in DCCC 1184/2007. In respect of both cases, the total sentence imposed on the applicant is 70 months’ imprisonment.

6.Represented by Mr Peter TK Ip, the applicant seeks leave to appeal against sentence on the basis that the overall sentence of 70 months in respect of the two cases is manifestly excessive. Mr Ip relies on R v Tsang Wai Hing CACC 83/1993; HKSAR v Kwok Kin Wai CACC 181/2007; and HKSAR v Lau Po Sing CACC 95/2007 to support his contention.

DCCC 1184/2007

7.The offence was committed on 8 November 2007 when the applicant and his accomplice robbed Tin Gi Beautician Shop in Shamshuipo.

8.The applicant and his accomplice, each holding a fruit knife with a 5-inch blade, entered the shop and declared robbery. They asked the proprietor and her employee to surrender their money. The applicant’s accomplice, after being told by the proprietor that the money was kept in a drawer, searched the drawer and took away $27.

9.The applicant fled, but was apprehended by a police officer after the worker of an adjacent shop pointed him out. A fruit knife was found next to the applicant and a roll of adhesive tape was found on his person. The applicant admitted that he robbed because he was in need of money. He also said his accomplice was someone he met in jail.

10.In January 2008, the applicant pleaded guilty to robbery and was sentenced to 40 months’ imprisonment.

The Applicant’s Background

11.The applicant, 44-year old, has a 22-year old daughter who lives with his divorced wife, but no other relatives. The applicant has six previous convictions, including rape, assault occasioning actual bodily harm, being a member of a triad society, assault with intent to rob, criminal damage, driving while disqualified and possession of a false instrument.

Discussion

12.An armed robbery, particularly with the use of lethal weapons, is a very serious offence. According to the guidelines laid down in Mo Kwon-sang (supra), in a robbery involving the use of a knife, the invasion of private premises and the use of physical violence on a victim, “a sentence of seven years’ should be considered”. Such starting point should be further increased if more than one robber is involved.

13.The applicant, together with an accomplice, entered private premises. He, armed with a knife, threatened the victim and pushed her head against a wall. Such aggravating factors would warrant, in accordance with the guidelines in Mo Kwong-sang (supra), a starting point in the region of 6 ½ years’ imprisonment.

14.We cannot ignore that the applicant had, within a period of one year, committed two robberies of shops with an accomplice. We cannot also ignore that the applicant has many previous convictions, including convictions for very serious offences such as rape and assault with intent to rob, albeit that such offences were committed quite a long time ago.

15.We have considered the cases referred to us by Mr Ip. Despite Mr Ip’s able submissions, those cases, properly analyzed, are of no assistance to the applicant.

16.The total sentence of 70 months, imposed on the applicant for the two cases on a plea of guilty, represents a global starting point of 8 years and 9 months’ imprisonment, which is not a lenient sentence, but is not manifestly excessive either.

Conclusion

17.We are not persuaded that there is any room for a reduction of sentence. The application for leave to appeal against sentence is dismissed.

Mr William Tam, SADPP of the Department of Justice for the Respondent.

Mr Peter T K Ip instructed by the Director of Legal Aid for the Applicant.