HKSAR v. Wong Sin Kun

CACC180/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 180 OF 2009

(ON APPEAL FROM HCCC 69 OF 2009)

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BETWEEN

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Before : Hon Stock VP and Lunn J

Date of Hearing : 17 December 2009

Date of Judgment : 17 December 2009

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JUDGMENT

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Lunn J (giving the judgment of the Court):

1.The applicant, who appears in person, seeks leave to appeal against a sentence of six years’ imprisonment, imposed upon him by Beeson J, following his plea of guilty to a single count of robbery of Mr Lam Wun on 27 October 2008 in Room 1709, Lok Shan House, Cheung Shan Estate, Tsuen Wan, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210.

THE FACTS

2.The applicant accepted as the basis of the court accepting his plea of guilty, entering a conviction and imposing sentence a “Summary of Facts”, which set out the circumstances of the commission of the offence and the consequences for the 88-year-old victim. The applicant followed Mr Lam to his home on the afternoon of 27 October 2008, after he had seen him exchanging RMB for Hong Kong dollars in a money exchange shop and counting it in the street. In order to do so, he trailed Mr Lam as he made a purchase, accompanied him on a minibus and followed him on foot to the door of his domestic premises. There, he engaged Mr Lam in conversation and, having requested a drink of water to quench his thirst, was permitted to enter Mr Lam’s home. After he had been provided with a cup of water he rounded on Mr Lam, attacking his head with his hands. Mr Lam resisted and a struggle ensued between the two of them during which Mr Lam sustained multiple injuries and lost consciousness. Then, the applicant gagged Mr Lam with a towel that he thrust into his mouth, tied his hands and then his feet together with towels and dragged him into the toilet. There, he removed $7,000 from Mr Lam’s pocket, after which he left the premises leaving Mr Lam lying on the floor.

3.Mr Lam’s wife returned to the premises a little while later and called the authorities so that Mr Lam could be taken to hospital. He was detained in hospital for 19 days, first of all being a patient in the Intensive Care Unit of Princess Margaret Hospital for three days. The injuries inflicted upon Mr Lam by the applicant included:

(i)  to his head: multiple bruises over the head, periorbital swelling and bruising, right sub conjunctival haemorrhage, subdural haematoma, intraventricular haemorrhage and multiple abrasions on his face; and

(ii)  to his chest and forearm: a fracture of the fifth rib on the left side of the body and multiple bruises over the right forearm.

Having received a short course of physiotherapy before his discharge Mr Lam was prescribed outpatient follow-up treatment.

4.The applicant was arrested at his home on 26 November 2008, after police officers identified him from his fingerprints and DNA analysis of material found on a cup and cigarette found inside Mr Lam’s home. In a video-recorded record of interview, the applicant made frank admissions of his conduct in robbing Mr Lam.

REASONS FOR SENTENCE

5.In her reasons for sentence, the judge noted that the applicant was a divorced man of 62 years of age who had worked in factories and on construction sites until about 2003, after which he had operated a fruit stall, which had failed. Thereafter, he obtained such work as he was able to as a casual worker on construction sites. However, he had been unemployed for six months prior to the offence, as a result of which he was penniless and in debt, including in respect of arrears of rent to the Housing Authority for the premises in which he lived with his 19-year-old son.

6.The judge appeared to have accepted the submission advanced in mitigation that the applicant had first tried to snatch the money from Mr Lam and had resorted to violence only after Mr Lam resisted. But as Ms Vinci Lam for the respondent had pointed out in her submission the judge stated in mitigation that she accepted the Summary of Facts. In the event, we think that the difference is of no real substance. The fact is that Mr Lam sustained injury from the sustained violence that was inflicted on him by the applicant. The judge noted from a medical report put before her that the applicant suffered from diabetes and had high blood pressure. She noted too that the applicant had made frank admissions to the police with whom he had been cooperative and that he had tendered a plea of guilty at an early stage.

Starting point

7.The judge identified a number of factors in the commission of the offence relevant to her determination of the appropriate starting point to take the sentence, namely:

(i)  that it was premeditated to the extent that the applicant identified Mr Lam as a target and followed him some distance to his home;

(ii)  the applicant tricked his way into domestic premises;

(iii)  Mr Lam, a man of 88 years of age, was subjected to significant physical violence in a struggle which lasted 10 minutes;

(iv)  the applicant had left Mr Lam alone, not only unconscious but also bound and gagged, exposing him to the risk of a heart attack or seizure; and

(v)  there had been no restitution.

8.In determining that the appropriate starting point was 9 years’ imprisonment, the judge stated that she took into account that no weapon had been used by the applicant in the commission of the offence. She noted that the guidelines for sentence for robberies with a weapon, other than a firearm, set out in the judgment of this court R v Mo Kwong Sang start at 5 years’ imprisonment and provide for increases to reflect aggravating features. Further, that the guidelines for robberies in which a weapon was used to inflict injuries to the head, set out in the judgment of this court Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312 call for a sentence of not less than 8 years’ imprisonment.

9.Finally, she referred to the judgment of this court in HKSAR v Chui Chi Hung [2007] 2 HKLRD 409 in which the applicant’s leave to appeal against a sentence of 3 years and 4 months’ imprisonment imposed after he had pleaded guilty to a single charge of robbery in domestic premises was refused. There, the applicant had robbed his 78-year-old mother of $300 as she lay in her bed, having tried to drag her out of bed and having struck two blows to her back with his fists, causing a minor injury only. The judge observed that in its judgment this court had said that the factual basis for sentence in any particular case was unique and the references to other cases, even if committed in broadly similar circumstances, in which no guidelines for sentence were expounded were not of any particular assistance. She observed that the circumstances of the commission of the instant offence were more serious than those in Chui Chi Hung.

Discount

10.In imposing a sentence of 9 years’ imprisonment, the judge stated that she discounted the starting point that had been taken for the sentence by one third.

GROUNDS OF APPEAL AGAINST SENTENCE

11.The applicant’s “home-made” Grounds of Appeal against Sentence may be identified as being:

(i)  that he robbed Mr Lam of $1,700 only, not $7,000, and there was no mention in the Summary of Facts in respect of what it was that Mr Lam had been tied up with;

(ii)  that Mr Lam was detained in hospital for only two days, from which it is to be inferred that he suffered from only superficial injuries;

(iii)  that his case ought not to have been transferred to the High Court for hearing; and

(iv)  that he suffers from diabetes and high blood pressure, which requires long-term treatment, and that his mother is sick in the Mainland and he wishes to visit her.

SUBMISSIONS OF THE RESPONDENT

12.Ms Vinci Lam submitted that the sentence of 9 years’ imprisonment identified by the judge as the appropriate starting point for sentence was neither manifestly excessive nor wrong in principle although she conceded in oral submissions that it might have been on the high side. She suggested that although in Ma Ping Wah the guidelines stipulated that the sentences of not less than 8 years’ imprisonment for offences involving attacks to the victim’s head were predicated on the use of a weapon the circumstances of the commission of this offence were closely linked, which aggravating factors the judge had correctly identified. In all those circumstances, she submitted that the appropriate venue for the disposal of the applicant’s case was the Court of First Instance.

A CONSIDERATION OF THE SUBMISSIONS

13.Although the judge did not advert to it in her reasons for sentence, she had been informed that the applicant had two previous convictions for theft. In 1996, he had been fined. In February 2003, a sentence of 2 months’imprisonment, suspended to two years, was imposed.

14.There is no merit in the applicant’s challenge to the factual basis on which sentence was passed. All of those matters were dealt with in the Summary of Facts, which he accepted as the basis of his plea of guilty. He was represented by counsel at the hearing. Of the applicant’s challenge in respect of the amount of money he stole, the applicant claimed it was $1,700 and not $7,000, it is to be noted that the latter sum of money was specified in the Summary of Facts and stipulated in the “Particulars of Offence” of the single count on the indictment. Of his challenge to the length of time that Mr Lam was detained in hospital, he claimed it was two days, and his contention that there was no mention in the Summary of Facts of what it was that had been used to tie up Mr Lam, it is to be noted that both matters are dealt with specifically in the Summary of Facts: Mr Lam was detained in hospital for 19 days and tied up by the applicant with towels. Also, Mr Lam’s injuries are detailed in Summary of Facts.

The applicant’s medical condition

15.The fact that the applicant suffers from diabetes and high blood pressure is, unfortunately, not uncommon in people of his age. However, there is no reason to think that he will not receive all appropriate treatment whilst in custody. Further, as Ms Vinci Lam pointed out in her written submissions, Li CJ in a determination of the Appellate Committee of the Court of Final Appeal in Yip Kai Foon v HKSAR (2003) 3 HKCFAR 31 cited with approval (page 35H) the statement of Nazareth VP in the judgment of this court in R v Ho Mei Lin [1996] 4 HKC 491:

“… it is well established that ill-health is not normally a reason for reducing a proper sentence.”

There is no merit in this ground of appeal, or in his complaint that he is unable to visit his mother in the Mainland.  Furthermore, we are satisfied that it was appropriate for the prosecution to transfer the proceedings for hearing in the Court of First Instance.

16.Whilst we are satisfied that there is no merit in individual complaints that the applicant has advanced, we are equally satisfied that the judge fell into error in identifying, as the starting point to be taken for sentence, 9 years’ imprisonment and in imposing a term of 6 years’ imprisonment on the applicant. The judge correctly identified the factors of aggravation in the commission of the offence. Although sustained violence was used on Mr Lam, resulting in his detention in hospital for 19 days after he had been callously abandoned alone, unconscious, gagged and trussed up, the fact remains that no weapon was used. The guidelines for sentence in the so-called “head bashing cases” articulated in the judgment of this court in Ma Ping Wah are predicated on the use of a weapon deliberately aimed at the head. The basis for that contingency is set out in the judgment of Stuart-Moore VP (see page 320 A-B), namely:

“… It seems to us a matter of the most straightforward common sense where a robber deliberately set about his victim by striking a blow or, as in this case, blows to the victim’s head with a weapon which is capable of causing brain injury, this will be an aggravating factor.  It is a particularly dangerous act.”

17.Accordingly, with respect to the judge, in our view she was in error to state, in her determination of the appropriate starting point for sentence that she considered:

“… this offence is more akin to a head bashing case and that a proper starting point for sentence should be eight years.  That should be increased to nine years to take into account the gagging, binding and abandoning of the unconscious victim.”

18.In our judgment, the aggravating factors in the commission of this offence justify a starting point of 7½ years’ imprisonment. As the judge stated, the applicant was entitled to a one-third discount from the starting point taken for sentence. Accordingly, the appropriate sentence to be imposed upon the applicant is one of 5 years’ imprisonment.

CONCLUSION

19.In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quash the sentence of 6 years’ imprisonment imposed upon the applicant and in its place impose a sentence of 5 years’ imprisonment.

20.It is with regret that we note that the applicant’s application for legal aid to pursue his application for leave to appeal against the sentence was refused.

Ms Vinci Lam, SPP of the Department of Justice, for HKSAR.

The Applicant in person, present.