HKSAR v. Yang Hui Rong

CACC 317/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 317 OF 2008

(ON APPEAL FROM HCCC NO. 140 OF 2006)

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Before: Hon Hartmann JA and Beeson J in Court

Date of Hearing: 4 June 2009

Date of Judgment: 4 June 2009

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J U D G M E N T

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Hon Hartmann JA (giving the Judgment of the Court):

1.On 4 January 2007, in the Court of First Instance, having pleaded guilty to 5 charges of robbery, contrary to s.10 (1) and (2) of the Theft Ordinance, Cap. 210, the applicant was sentenced by Judge Nguyen to 9 years’ imprisonment.  The applicant now seeks leave to appeal his sentence out of time.

2.There has been a substantial delay in seeking leave to appeal against sentence, one in excess of 18 months.  The applicant has sought to explain the delay on the basis that, when his Reasons for Sentence were pronounced by the judge, as the English language was used, he did not understand much of what was said.  It was only recently, in discussions with others, that he was able to discover that he had grounds for appeal.  According to the applicant, he was told by others that the judge had originally calculated a sentence of 27 years, reducing that sentence by way of discount for his plea of guilty.  A starting point of 27 years, he said, was excessive.

3.Whatever was told to the applicant was wrong.  At no stage of his deliberations did the judge speak of 27 years or anything like it.

4.As to the long delay in seeking leave we are not convinced by the explanation that has been put forward by this applicant.  As counsel for the respondent has pointed out in her written submissions, the Reasons for Sentence were neither lengthy nor complex.  In addition, of course, even though the judge spoke in English, the applicant had the benefit of simultaneous translation by the interpreter.  It is to be noted that the applicant was also represented by counsel at the sentencing hearing.  If he was confused in any way, it was open to him to seek clarification from his own counsel.

5.On this basis alone, taking into account the substantial delay, we would be inclined to refuse leave to apply out of time.  We accept, of course, that it would be wrong in principle to refuse leave on the basis that the delay has not been adequately explained if, in so doing, we were to shut out substantial and plainly arguable grounds of appeal: see R v Wong Kai Kong [1990] 1 HKC 279.  In our judgment, however, the grounds that have been advanced have no substance.

6.As to the background of the offences, each of the five robberies was committed on a street at a time when it was largely deserted.  The victim of each robbery was a woman on her own.  On each occasion, the applicant carried a weapon, either a scalpel or a knife, using it to threaten his victim.  On each occasion too the applicant was accompanied by a woman who assisted him if necessary in committing the robberies.

7.Two of the robberies involved what I will describe as aggravated violence.  In one robbery, when the victim struggled with the applicant, she received a minor stab wound to her arm.  In another, when a man intervened to try and assist the victim, the applicant struck him on the head with a wooden pole, causing injury to him.

8.As to the basis upon which the judge arrived at his sentence, in respect of the two robberies which involved aggravated violence, the judge took as his starting point a period of 6 years’ imprisonment, giving a one-third reduction in sentence for the guilty plea, reducing each to 4 years.  In respect of the remaining three robberies, the judge took as his starting point a period of 5 years’ imprisonment, the one-third discount reducing those sentences to 3 years and 4 months’ imprisonment each.

9.To ensure that the overall sentence was appropriate to the overall culpability of the applicant, the judge reduced each sentence so that in total they amounted to 9 years’ imprisonment.

10.It is the applicant’s complaint that, when compared with sentences for robbery imposed on others, the sentence imposed on him was manifestly excessive.

11.The seminal authority in respect of sentencing for robbery is Mo Kwong Sang v R [1981] HKLR 610.  The starting points adopted by the judge were well within the guidelines set out in that authority.

12.In assessing the applicant’s overall criminal culpability, the judge reduced the total of the individual sentences by 50%, making for a final sentence of 9 years.  That final sentence quite plainly was neither wrong in principle nor manifestly excessive.

13.Each sentence must be assessed according to the circumstances of each case and what must be remembered in respect of the applicant is that he committed five separate robberies, not alone but on each occasion with an accomplice.  On each occasion, the victim, a woman on her own, was threatened with a scalpel or knife and the evidence shows that, if he considered it necessary, the applicant was prepared to substantially increase the level of violence, doing so in fact on two occasions.

14.For the reasons given the application for leave to appeal out of time is dismissed.

Ms Sally Yam, SPP, of Department of Justice, for the Respondent

The Applicant in person