HKSAR v. Pham Van Thang

CACC 21/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 21 OF 2009

(ON APPEAL FROM DCCC NO. 1117 of 2008)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Beeson and Saw JJ

Date of Hearing: 21 May 2009

Date of Judgment: 21 May 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.The applicant, who by his own admission sneaked into Hong Kong on 11 October 2008 having come via the Mainland from Vietnam, later that day robbed a girl aged 11 of her mobile telephone.  It was alleged that the offence was carried out with a knife.  The robbery occurred at about 11.45 am as the victim and her 11 year-old friend were making their way to lunch after school.  About five hours later, the applicant was arrested in possession of the victim’s mobile telephone.  He was located close to the vicinity of the offence but, by that stage, he had no weapon on him.

2.On 2 January 2009, the applicant pleaded guilty to robbery and to remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully.  He was sentenced for these offences on the same day by District Judge Browne to 40 months and 15 months’ imprisonment, respectively.  The sentence of 15 months was ordered to run consecutively, making 55 months in all.

3.The applicant now seeks leave to appeal against his sentence.

4.Mr Suen Kam Hee submitted that the applicant had been given a sentence which was manifestly excessive and he advanced three grounds of appeal on the applicant’s behalf which were as follows:

“1.     The learned Judge erred in principle in sentencing the [applicant] on the basis that there was not much difference [whether] a knife or a pole was used in the robbery.

2.       The learned Judge erred in principle in failing to resolve the issue as to whether the [applicant] was using a knife or a pole in committing the robbery.

3.       The learned Judge practically failed to consider the totality principle in sentencing the [applicant] to a total of 55 months.”

5.All of these grounds are closely connected and can be taken together.

6.After the applicant had been arrested, he immediately admitted robbing the victim, saying that he wished to be imprisoned so that he could receive treatment for drug addiction and a medical condition.  He added that he had been holding a small pole rather than a knife at the time of the robbery.

7.The judge was well aware of the applicant’s claim that he had been holding a “pole” and said, when passing sentence:

“… I think the defendant is probably lying about that. I do not think these two 11-year-old girls would mistake a knife for a small pole.”

The judge went on to say:

“4.     In the circumstances, however, it does not seem to me to make much difference whether it was a knife or a pole. …”

8.Keeping in mind the sentencing guidelines for robbery in Mo Kwong-sang v R [1981] HKLR 610 with regard to knives or other dangerous weapons with the exception of firearms, the judge took a starting point of 5 years’ imprisonment in spite of the age of the victim which he rightly considered to be an aggravating factor in the case.  This was because, as the judge expressed it, the 2^nd charge attracted a custodial sentence “which the authorities say I must impose consecutively” and so he decided against increasing the starting point for the robbery “having considered the totality of the sentence” he would have to impose.

9.It is plain, therefore, that the judge had correctly considered both the starting point for robbery with a knife and totality.

10.However, the issue which is left for our consideration is whether the judge was right to have treated this as a “knife robbery” when there was an issue which needed to be resolved, not on a balance of probabilities (see: R v Cheng Ching-kwong, CACC 335/1985 at para. 34), but by proof beyond reasonable doubt.  In Cheng Ching-kwong, Silke JA, when dealing with a contested issue at the sentencing stage, said:

“34.   We accept that where there is controversy, and a contested issue is tried at this stage of the trial, then the burden of proof is that of beyond a reasonable doubt in relation to the matters which the Crown seeks to prove.  It is clear from the authorities that generally, and particularly where there are submissions made, matters of fact within the bounds of reasonable possibility which are favourable to the defendant are to be relied upon.”

11.A contested issue, the resolution of which may materially affect the length of sentence imposed, is generally dealt with by means of a Newton hearing, following the procedure laid down in R v Newton [1983] 77 Cr App R 13.  In that case, there existed what Lord Lane CJ described as being “about as sharp a divergence on questions of fact as could possibly have been imagined”.  The issue in that case, for the purposes of sentence only, lay between consensual and non-consensual buggery.  Lord Lane CJ stated that in certain circumstances it would be “possible to obtain the answer to the problem from a jury”.  We can pass over this as plainly this route was not applicable in the instant case.  The second and third methods were described (at page 15) as follows:

“The second method which could be adopted by the judge in these circumstances is himself to hear the evidence on one side and another, and come to his own conclusion, acting so to speak as his own jury on the issue which is the root of the problem.

The third possibility in these circumstances is for him to hear no evidence but to listen to the submissions of counsel and then come to a conclusion. But if he does that, then, as Judge Argyle himself said in a passage to which reference will be made in a moment, where there is a substantial conflict between the two sides, he must come down on the side of the defendant. In other words where there has been a substantial conflict, the version of the defendant must so far as possible be accepted.”

12.It was the third of these methods which the judge chose to adopt in the present case, no doubt having considered the age of the two witnesses to this robbery and the undesirability of requiring their attendance at court.  If so, we sympathise with the approach he took.  Furthermore, there is no suggestion in these proceedings that the judge was invited by counsel to conduct a Newton hearing but, out of a abundance of caution, we have listened to the mitigation immediately prior to sentence being passed and this confirms that nothing was said in this regard.

13.The complaint here is that, having proceeded along the third of the routes by which the facts can be determined for the purposes of sentencing, the judge decided the issue on a balance of probabilities when a higher standard was required.  The difficulty faced by the judge was that, as there had been no trial, he had not been given the opportunity he would otherwise have had to assess the evidence given by the two young witnesses about the nature of the weapon produced by the applicant when committing this offence. 

14.This was plainly an issue which materially affected sentence as another division of this court has indicated that a judge would be entitled, depending on his “feel” of the case, not to regard “wooden and metal rods” as “dangerous weapons” (see: HKSAR v Au Chi-hang and Ors, [2006] 2 HKLRD 312) for the purposes of the 5-year starting point for robberies carried out with a dangerous weapon (other than a firearm) under the Mo Kwong-sang guidelines.

15.In these circumstances, we decided that the only proper course to adopt was to conduct a Newton hearing.  We have now heard from both of the girls who were present at this robbery.  Neither of them was in the slightest doubt that the weapon used in this robbery was a knife.  Both described it as a red-handled knife with a silver blade.  PW2 noticed that it looked very sharp and the victim herself indicated with her hands that she thought the knife was about 9 inches long.  It was held close to her cheek and she thought it touched her once. 

16.The applicant chose not to give evidence.

17.In our view, the position could not be clearer.  This was a robbery committed with a knife so that the Mo Kwong-sang guidelines applied.

18.Accordingly, although we must give leave, having treated the hearing as the appeal, we dismiss the appeal.

Mr P S Chapman, SADPP, of the Department of Justice, for the Respondent.

Mr Suen Kam Hee, instructed by Director of Legal Aid, for the Applicant.