Secretary for Justice v. Lee Chun-ho, Jeef

CAAR 9/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

APPLICATION FOR REVIEW NO. 9 OF 2008

(ON APPEAL FROM HCCC NO. 238 OF 2008)

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Before:  Hon Yeung JA, Lunn J and Wright J

Date of Hearing:  20 October 2009

Date of Judgment:  20 October 2009

Date of Handing Down Reasons for Judgment: 3 November 2009

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the Reasons for Judgment of the Court):

Introduction

1.On 20 October 2009, we granted the application by the Secretary for Justice and increased the total sentence imposed on Lee Chun-ho, Jeef (the respondent) from 42 months to 6½ years’ imprisonment for a charge of robbery and a charge of using an imitation firearm with intent to resist or prevent lawful arrest. We also ordered such sentence to be served consecutively to the sentence that the respondent was serving in respect of other offences. We indicated that we would hand down our reasons in due course and this we now do.

The Facts

2.On 31 May 2008, shortly after mid-night, the respondent robbed Madam Wong Wing-yin (the victim) in Tsz Wan Shan by pointing a pistol-like object at her. The respondent snatched away the victim’s knapsack, but was pursued by her. The victim’s shout of robbery alerted a passer-by (“Mr Yiu”), who gave assistance and tried to intercept the respondent by sticking out an umbrella. The respondent then pointed the pistol-like object at Mr Yiu and said, “Don’t chase after me or I’ll fire at you.”

3.The victim and Mr Yiu continued to chase after the respondent, and Mr Yiu made a report to the police as he was chasing.  Two off-duty police officers on board a vehicle noticed the incident and joined in to pursue the respondent who was still holding the pistol-like object in his hand.

4.The respondent entered a housing estate where he dropped the pistol-like object and the victim’s knapsack onto a lawn next to a car park before he was intercepted and subdued by the police officers.

5.Both the victim and Mr Yiu positively identified the respondent. The respondent told the officers that he committed the robbery because he could not find sufficient work to make a living. He further told an officer subsequently that the pistol-like object was actually a lighter that he had purchased at Temple Street.

6.The total value of the victim’s knapsack and its contents was about $3,700.  As the knapsack was recovered, the victim suffered no loss except two keys and one octopus card with a stored value of about $70.

7.The aforesaid incident led to a charge of robbery and a charge of using an imitation firearm with intent to resist or prevent lawful arrest against the respondent.  The respondent pleaded guilty to both charges at the magistracy and was committed to the High Court for sentence.

8.On 2 December 2008, Mr Recorder L Lok SC sentenced the respondent to a total term of 42 months’ imprisonment. At the time of sentence, the respondent was serving a term of 13 months’ imprisonment imposed on 18 June 2008 for the offences of theft and common assault committed on 30 January 2008. The present offences were committed whilst the respondent was on bail. The judge was not alerted to this and he made no order as to whether the 42 months should be consecutive or concurrent sentence to the 13 months’ imprisonment.

9.The judge, having referred to the cases of R v Yu Tai Wing [1995] 2 HKCLR 119, HKSAR v Huang Jianfeng CACC 145/2006 and R v Mo Kwong-sang [1981] HKLR 610, adopted a starting point of 6 years for each of the charges. The judge reduced the starting point by one-third to four years on account of the guilty pleas and then by a further 6 months to 42 months for the applicant’s pleading guilty at the magistrate’s court and for his co-operation with the police, both at the scene of crime and in the police station. The judge ordered the sentences on both charges to run concurrently.

The Respondent’s Background and Mitigation

10.The respondent, aged just over 30, had 12 previous convictions, mostly relating to dangerous drugs or dishonesty but including one for robbery. He is married with a daughter aged about 4.

11.The respondent told the court that he came from a broken family and did not do well in school because of the neck injuries that he had suffered in a traffic accident. He said he tried to work hard to make an honest living after marrying his wife. He said that after the daughter was born, his wife was addicted to “ice”. He also said his wife did not get along well with his mother and had been unfaithful to him.

12.The respondent suggested that the welfare assistance of $2,500 that he received a month was insufficient to maintain him and his daughter, and he was in financial difficulties. He said the offences, including the use of a “gun-like lighter” were not planned, and were committed after he got drunk and took an overdose of drugs.

13.The respondent said he was remorseful and asked to be given a chance.

The Application

14.With leave granted by Ma CJHC, the Secretary for Justice, under section 81A of the Criminal Procedure Ordinance, applied for a review of the sentences passed on the respondent.

15.Mr R Lee SC, Acting Deputy Director of Public Prosecutions, on behalf of the Secretary for Justice, suggested that the sentences imposed on the respondent were unduly lenient as they “fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate”.

16.Mr Lee pointed out that the sentencing guidelines laid down in Mo Kwong-sang (supra) only applied to robbery with the use of a knife or dangerous weapon other than firearms or imitation firearms.  Mr Lee suggested that applying Yu Tai Wing (supra) and Huang Jianfeng (supra), the proper starting point for the robbery charge should be 10 years’ imprisonment and that the charge of using an imitation firearm should attract a consecutive sentence, otherwise the respondent would have received no actual punishment for a separate and distinct offence.

17.Mr Lee submitted that, in any event, the judge should not have given, on top of the one-third discount, a further reduction of 6 months for the guilty pleas at the magistrates’ court and the co-operation with the police.

18.Mr Wong Po Wing, counsel for the respondent, opposed the application and suggested that the sentence imposed on the respondent, albeit a light one, was not manifestly inadequate to justify interference by this court.

19.Mr Wong emphasized that the offences in question were not the worst of their types and that the 10-year starting point adopted in Yu Tai Wing (supra) and Huang Jianfeng (supra) might be unduly harsh when comparing it with the 7-year guideline laid down in Mo Kwong-sang (supra) for a robbery with a knife or other dangerous weapons and involving an invasion of private premises and the use of physical violence on the victims.

20.Mr Wong argued that the facts of the present case were less serious than those of Yu Tai Wing (supra) and Huang Jianfeng (supra).

Discussion

21.The sentencing guidelines laid down in Mo Kwong-sang (supra) do not apply to armed robbery with the use of firearms. Roberts CJ said so expressly at p 611 of the judgment:

“By the word ‘armed’ in this judgment, we are referring to knives and other dangerous weapons, but not to firearms for which severer sentences are normally imposed.”

22.It must be recognized that robbery with the use of firearms is particularly hideous because, firstly they cause much greater fear to the victims, and secondly and perhaps more importantly, the use of firearms by the robbers will increase the chance of the law enforcement officers resorting to their own, thus exposing the public to serious risks of death or personal injury.

23.The fact that the firearm is just an imitation firearm makes little difference as on the spur of the moment; neither the victims nor the law enforcement officers may appreciate that it is an imitation firearm.

24.The actual use of a genuine firearm in the course of the robbery will of course attract a much higher sentence. Tso Wo-ping v R (unreported, CACC 623/1981) was an attempted robbery of a watch shop when four men went into the shop, 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 that “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.

25.The Court of Appeal has consistently adopted a starting point of 10 years for robbery involving the use of imitation firearms.

26.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’ imprisonment would have been appropriate, which was reduced to 8 years, as it was a review.

27.In HKSAR v Huang Jianfeng (unreported CACC 145/2006), the defendant used an imitation firearm to commit two robberies. In the second robbery, threats to use an imitation firearm were uttered. The Court of Appeal considered a starting point of 10 years’ imprisonment to be appropriate for each of the two offences of robbery.

28.In HKSAR v Mak Chi Ho (unreported CACC 290/2007), the Court of Appeal approved a total sentence of 10 years’ imprisonment, on pleas of guilty, for one robbery and one attempted robbery of convenience stores with the use of imitation firearms.

29.In Yu Tai-wing (supra), the Court of Appeal stated at p 122 – 123:

“In the present case, had the robbery been committed by using a knife or other dangerous weapon, not being a firearm, a sentence of five years’ imprisonment would have been appropriate in accordance with the guidelines laid down in Mo Kwong-sang v R… However, the weapon that was used was an imitation firearm. Since the mere carrying of such a weapon with intent to commit an arrestable offence normally attracts a sentence of five years’ imprisonment after trial, an overall starting point for sentence of ten years’ imprisonment after trial was appropriate.”

30.Mr Wong emphasized that the starting point adopted in Yu Tai Wing (supra) was only 8 years and 6 months when the facts were more serious. Mr Wong therefore suggested that the starting point that we should adopt should be less than 8 years and 6 months, as this was a sentencing review.

31.We simply want to point out that 8 years and 6 months was adopted in Yu Tai Wing (supra)because, inter alia, the defendant (a serving police officer) “had completed 20 years of unblemished service and had plainly acted completely out of character in doing what he did.” The respondent, on the other hand, had many previous convictions. 

32.The Court of Appeal in Yu Tai-wing (supra) actually approved a 10-year starting point for a single charge of robbery “where an opportunist robber embarks upon a robbery alone with an imitation firearm in a public place and inflicts no injury on his victim.”

33.The robbery committed by the respondent was not of the worst type of its kind, however the fact that the respondent robbed a lone woman shortly after mid-night with the use of a pistol-like object suggested that it was a planned robbery. Also, we could not ignore the fact that the respondent, in his attempt to escape, actually threatened Mr Yiu that he would fire at him. It required exceptional courage on the part of Mr Yiu to continue chasing after the respondent in the face of such a threat.

34.We were persuaded that the proper starting points for the 1^st charge and the 2^nd charge should have been 10 years’ and 6 years’ imprisonment respectively. When adopting a 10-year starting point for the 1^st charge, the fact that the applicant was carrying an imitation firearm was already taken into consideration. However, the threat to Mr Yiu was serious and it had nothing to do with the robbery.

35.On the fact of the present case, we were persuaded the sentence on the 2^nd charge should be partly consecutive to the sentence on the 1^st charge to signify our disapproval of the respondent’s outrageous conduct. We considered an extra term of 6 months appropriate.

36.For an offence of robbery with the use of imitation firearms, personal difficulty and/or financial hardship are not mitigation factors.

37.The Court of Appeal have repeatedly emphasized that the one-third discount “is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time.” The respondent’s co-operation with the police referred to by the judge was his admission of the offence to the police, both at the scene of the crime and at the police station. Such a “co-operation” is just part and parcel of the respondent’s admission of his guilt, albeit at the first available opportunity. This mitigating factor should be subsumed within the one-third discount.

38.We agreed with Mr Lee’s submission that the judge should not have given a further six-month discount on top of the one-third discount for the guilty pleas.

39.Given that this was a review of sentence and having regard to all the circumstances, we were of the view that the respective starting points of 9 years’ and 6 years’ imprisonment would be appropriate for the 1^st and 2^nd charges. The respondent was entitled to the one-third discount for his guilty pleas.

Conclusion

40.We allowed the application for a review of sentence on the ground that the 42-month sentence originally imposed on the respondent was manifestly inadequate.

41.We quashed that sentence and in substitution, we imposed the respective sentences of 6 years’ and 4 years’ imprisonment on the 1^st and the 2^nd charges. We ordered 6 months of the 4-year sentence to be a consecutive term to the 6-year sentence.

42.The respondent’s total sentence was increased from 42 months to 6½ years’ imprisonment.

43.On 2 December 2008 when the respondent was sentenced for the present offences, he was serving a term of 13 months’ imprisonment imposed on 18 June 2008 for the offences of theft and common assault committed on 30 January 2008.

44.The present offences were committed whilst the respondent was on bail. There was no reason not to order the 6½ years’ imprisonment to run consecutively to the 13 months’ imprisonment that the respondent was serving in respect of the theft and common assault charges.

45.Accordingly we ordered that the 6½ years’ imprisonment and the 13 months’ imprisonment were to be served consecutively.

Mr Robert SK Lee, SC, DDPP(Ag) of the Department of Justice for the Applicant.

Mr Wong Po Wing instructed by Messrs Chong & Yen assigned by the Director of Legal Aid for the Respondent.