HKSAR v. Fu Choi Chung

CACC 367/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 367 OF 2008

(ON APPEAL FROM HCCC No.137 of 2008)

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BETWEEN

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Before: Hon Yeung JA and Saw J

Date of Hearing: 1 September 2009

Date of Judgment: 1 September 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):

Introduction

1.On 14 October 2007, the applicant (Fu Choi-chung) appeared before Deputy Judge Line in the High Court on an indictment consisting of 2 counts of robbery (3^rd and 4^th charges), 4 counts of attempted robbery (1^st, 2^nd, 5^th and 6^th charges) and 1 count of possession of a dangerous drug (7^th charge). The applicant pleaded guilty to all the charges and was sentenced as follows:

1st to 4th charges	7 years each
5th charge	6 years
6th charge	8 years
7th charge	2 months

2.The judge ordered the sentences on the 1^st and 3^rd charges, and on the 4^th to 6^th charges to run concurrently, with 3 years on the 4^th to 6^th charges to run consecutively to the 7 years’ sentence on the 1^st to 3^rd charges. The judge further ordered the 2 months’ sentence on the 7^th charge to run concurrently with that of the 1^st to 6^th charges. The total sentence is one of 10 years’ imprisonments.

3.The applicant seeks leave to appeal against sentence.

The Facts

4.Between 14^th and 20^th of November 2007, the applicant, wearing a facemask and holding a pistol-like object, robbed or tried to rob two pawnshops, two banks, a branch of the Hong Kong Jockey Club betting centre and a Caltex Petrol Station in various parts of Kowloon and the New Territories. Often the applicant would also be wearing a cap and gloves.

5.On each occasion, the applicant threatened the victims with the pistol-like object. There were occasions when the applicant, verbally or by means of a written note, threatened to kill the victims unless they surrendered their cash to him.

6.On 20^th November 2007 when the applicant tried to rob the Dah Sing Bank in Tin Shui Wai (the 6^th charge), he grabbed hold of two bank customers and pointed the pistol-like object at the counter in order to force the staff to give him the money.

7.The applicant managed to obtain $17,500 from the Jockey Club betting centre and $33,000 from the Tai Hing Branch of ICBC (Asia) Limited.

8.It appeared that on some of the occasions, the applicant made use of his private car, often with false registration plates, to get away from the scenes of crime.

9.The applicant was arrested on 21 November 2007. He told the arresting officer that he robbed because he owed over $300,000 to loan sharks in Macau. He said the gun he used was just an air pistol that he kept at home.

10.The police searched his residence and found an air pistol with accessories including pellets and cylinders of gas. There were also masks and pairs of gloves as well as 9 packets of 8,084 tablets containing 193.12 grammes of estazolam (7^th charge). The applicant admitted that the items all belonged to him.

The Applicant’s Background and Mitigation

11.The applicant had many previous convictions including burglary, robbery, manslaughter, assaulting occasioning actual bodily harm, assaulting and obstructing a police officer, driving whilst disqualified and without 3^rd party insurance, and possession of and selling liquor without a license.

12.The applicant, at the time of sentence, was 37 years old. He was married with a daughter aged 9 and a son aged 4. Due to marital problems, the applicant had moved out of the matrimonial home with the daughter.

13.The applicant was born in the Mainland and came to Hong Kong when he was 8. He was educated up to Form 3 and started work at the age of 15. He had been a kitchen worker, a bar tender and then a bar operator.

14.It was suggested that the applicant was the victim of a vicious assault in 2004 when he sustained multiple chop wounds with his left wrist partially amputated. It was emphasized that the assault and the marital problems had led to the applicant suffering from insomnia and mental stress, and as a result, the applicant had to resort to the illicit drug, estazolam.

15.It was further suggested that the applicant gambled in Macau in order to raise sufficient money to open a pub in the Mainland. However, the applicant ended up loosing his entire saving of $400,000, and had to borrow a similar sum from loan sharks. The implication was that the applicant had to rob in order to repay the loan sharks.

The Sentence by the Judge

16.The judge did not articulate the sentences that he imposed. The judge took the view that the respective starting points for the 1^st to 4^th charges, the 5^th charges and the 6^th charges should be about 10 years, 9 years and 12 years. The judge reduced those starting points by one-third on account of the guilty pleas.

17.The judge took the view that an overall sentence of 10 years’ imprisonment was appropriate.

Grounds of Appeal

18.In his home made grounds, the applicant pointed out his family difficulties, including the serious illness suffered by his mother and elder brother. The applicant said he wanted to raise money to help them and to fund the setting up of a bar. He said he was foolish to gamble in Macau resulting in a huge debt that he could not repay.

19.The applicant said he had to take care of his young children as his wife suffered from depression.

20.The applicant suggested that he must have been suffering from psychological and psychiatric problem or else he would not have committed six serious robberies in just one week.

21.The applicant further suggested that there were similar cases of armed robberies where the defendants were only sentenced to 1 or 2 years’ imprisonment.

22.The applicant complained that the 10 years’ sentence, representing a total starting point of 15 years, was manifestly excessive. He said he wanted to be close to his children before they reach adulthood.

23.In his submissions to us, the applicant emphasizes the psychiatric illness resulting from his long-term use of illicit drugs. He even says that he had no intention to commit the offences. He also emphasizes that the charges of possession of imitation firearms were all dropped.

Discussion

24.Bank robberies are particularly serious offences because banks are in possession of large amount of cash, thus offering great temptation to potential robbers. Pawnshops, Jockey Club betting centres and petrol stations are in a similar position, and are also vulnerable to attack.

25.Clearly the applicant targeted the pawnshops, banks, a Jockey Club betting centre and a petrol station because he hoped to be able to obtain large sums of cash.

26.Robberies involving the use of firearms, even of imitation firearms, are hideous offences. When law enforcement officers are alerted, they would not be able to tell if the firearms used by the robbers are real firearms or just imitation firearms and they might have to resort to their own, thus exposing the public to grave danger.

27.This Court has, on many previous occasions, emphasized that the normal sentence to be expected where a person takes part in an armed robbery upon a bank or upon a jewellery or similar shop is one of twelve to fifteen years.

28.Tso Wo-ping v R (unreported, CACC 623/1981) was an attempted robbery of a watch shop when four men went in, one with a gun and two with axes. Two shots were actually fired into the ceiling by way of warning. It was observed by the Court of Appeal “fifteen years imprisonment is appropriate for this kind of robbery or attempted robbery” and that the actual use of firearms should attract an additional sentence of three to four years, making a total sentence of not less than eighteen years’ imprisonment.

29.In AG v Ng Hung-kei (unreported CAAR 12/1987), the defendant pleaded guilty to two shop robberies, using an imitation pistol on each occasion. It was held that a total sentence of 10 years would have been appropriate, which was reduced to 8 years, as it was a review.

30.In AG v Lee Ching-kwong (unreported CAAR 5/1987), the defendant was convicted on his own plea of an attempt robbery of a bank with an imitation pistol, a robbery of a domestic premises using a chopper and another one of a shop in which a shop assistant was stabbed with a knife. It was held that 12 years would have been appropriate, again reduced to 10 years, as it was a review.

31.This is, of course, a case of multiple offences committed by the applicant in one week. On each occasion, the applicant used an imitation pistol to threaten the victims. On one occasion, the applicant actually grabbed hold of two customers in a bank in order to overcome the staff so that they would succumb to his demand.

32.The offences were well-planned and carefully executed. The applicant targeted banks, pawnshop, a betting center and a petrol station. He carried an imitation pistol, and used facemasks and gloves. The applicant used his private car, with false registration plates, to facilitate his escape. We do not accept that his psychiatric problem had anything to do with the offences that he had committed or that such a problem constitutes a mitigating factor.

33.The applicant had many previous convictions of very serious offences including robbery, burglary and manslaughter. This is a very bad case of the type.

34.The applicant’s family problems, including his financial difficulties are simply no mitigation for the serious offences that he had committed. To some extent, the applicant had brought upon himself whatever misfortune he suffered.

35.We have considered the case carefully. None of the matters put forward by the applicant has caused us any concern. The sentence imposed by the judge is entirely proper. Far from being manifestly excessive, the 10 years’ sentence can be described as a lenient sentence.

36.We dismiss the application for leave to appeal against sentence.

Mr David Leung, SPP of the Department of Justice for the Respondent.

Applicant: In person.