HKSAR v. Wang Wei

CACC 446/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 446OF 2009

(ON APPEAL FROM HCCC NO. 348 OF 2009)

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BETWEEN

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Before: Hon Stock VP and Beeson J in Court

Date of Hearing: 19 May 2010

Date of Judgment: 28 May 2010

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J U D G M E N T

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Hon Stock VP(giving the Judgment of the Court):

1.On 23 October 2000 the applicant pleaded guilty in the magistrates’ court to a charge of robbery. He was committed to the High Court for sentence. On 4 December 2009, he was sentenced in the Court of First Instance by Deputy Judge Geiser to a term of 7 years’ imprisonment. This is his application for leave to appeal against that sentence.

2.The charge was that on 13 March 2007 at a flat in Stafford Road, Kowloon Tong, he robbed one of the occupants of that flat of HK$1,500; US$100; AUD$200; Indonesian $6,000: two watches and two credit cards.

3.The admitted facts were that the robbery took place at 3 a.m. Mr Whittington lived in the flat with his wife and children. He was asleep in one of the bedrooms into which two men, one of whom was the applicant, the other a person called Cheung, entered. The applicant was carrying a beef knife and Cheung a fruit knife. Each pointed a knife at the occupant and Cheung ransacked the bedroom and took the money and other items to which we have referred. Cheung then made the occupant write down the PIN of his ATM card and tied Mr Whittington’s hands and legs with two belts and gagged him with a T-shirt. Cheung left, with the applicant staying behind guarding the occupant by pointing a knife at him. Mr Whittington distracted the applicant, removed the gag, opened the bedroom window and called for help. There was a struggle and the applicant dropped his knife and fled. The police were called and in some drainage outside the flat they found a hood which was tested and DNA which was retrieved matched that of the applicant.

4.According to a statement made by the applicant subsequently, the applicant had come to Hong Kong from the Mainland on 10 March 2007 using a two-way permit. After the robbery, he joined Cheung who had failed to withdraw money from the victim’s bank account. Cheung gave him HK$6,000 as his share of the proceeds of the robbery. On 17 March 2007 the applicant returned to the Mainland. The applicant was arrested in Hong Kong in May 2009, two years after the robbery. Upon his arrest, he made a statement admitting complicity. When he first appeared before the Magistrate, he pleaded guilty.

5.In sentencing the applicant, the judge noted the suggested age of the applicant, namely, 20 years and also the applicant’s assertion that he had come to Hong Kong to find employment, an assertion of which the judge was sceptical but he said that he did not sentence the applicant on the basis that he had come to Hong Kong specifically to rob. The judge said that the circumstances of the robbery were shocking. The offence had taken place in domestic premises in the small hours of the morning, the offenders were armed and hooded and had subjected the victim to force.

6.The judge referred to R v Mo Kwong Sang [1981] HKLR 61. In that case, it will be remembered, it was suggested that the appropriate sentence in cases of armed robbery where the accused carried a knife or other dangerous weapon which he displayed to his victim should be one of five years’ imprisonment; that where the robbery involved an invasion of private premises, a sentence of six years was appropriate; and that if physical violence, including tying up the victim, was used, a sentence of seven years should be considered. There were other aggravating factors which warranted a further increase in sentence, such as an invasion of domestic premises during the night, and threats or ill-treatment of victims.

7.Having referred to that decision, the judge said:

“I intend to adopt a starting point of 7 years’ imprisonment but I will enhance this by 2 years to take account of the aggravating features that this robbery took place at night, more than one person took part in the robbery and threats were clearly made to the victim leading him to divulge his PIN, bringing my starting point up to 9 years’ imprisonment.”

8.Thus far, Mr Yuen, for the applicant, has no quarrel with the sentencing approach. What he complains about, however, is the fact that the judge accorded to the applicant less than a one-third discount for his plea of guilty.

9.What the judge said was this:

“I am told that you are remorseful but this, in my judgment, does not sit well with the fact that it was not until May of this year that you were arrested in relation to this matter when the police were able to match your DNA.  However, you have pleaded guilty and I must give you some credit for that.

….

This is not a timely plea of guilty.  You did return to Hong Kong in April of 2007 and, were you genuinely remorseful, you could then have surrendered to the authorities.  You chose not to.  However, you have pleaded guilty and I am prepared to reduce my starting point of 9 years’ imprisonment by 2 years to reflect this, coming to a sentence of 7 years’ imprisonment.”

10.We are satisfied that in this approach the judge erred. Were the failure to surrender oneself to the law enforcement authorities a factor demanding a reduction in the normal discount given for a plea of guilty, the number of cases in which a full discount would be given would be few and far between.

11.The well-established principle in this jurisdiction is that, where a timely plea has been entered, and in the absence of sound reason to the contrary, a defendant is entitled to a full one-third discount. The plea in this particular case could hardly have been more timely, it having been entered when the applicant appeared before the magistrate. It is not necessary in this particular case to enter upon a discussion as to the circumstances in which a discount of less than one-third might be warranted, since it suffices to say that the failure to surrender oneself to the police is not one of them. The authorities establish that surrender by an offender is often a mitigating factor beyond that established by a plea of guilty, though the extent of its mitigating effect is heavily contextual (see discussion of this in Sentencing in Hong Kong,Cross & Cheung 5^th ed., pp 381-382). What the judge has done in this case is, effectively, to penalize the applicant for not surrendering; a course which he ought not, in our opinion, to have adopted.

12.What seems to have triggered this approach by the judge was the suggestion in mitigation that the applicant had been remorseful, a contention which the judge rejected; and it may be that the judge assumed that since a plea of guilty is often said to be a sign of remorse, absence of remorse despite a plea of guilty should accordingly be reflected in a lesser discount. In this regard, the significance of remorse said to be implicit in a plea of guilty has been the subject of debate. There is force in the suggestion that in many cases it is not a sign of remorse at all but that the plea is advanced for different reasons, which will vary from case to case; very often because of the strength of the case or for similarly pragmatic reasons. In R v Cameron 187 ALR 65 at 81 Kirby J said that :

“The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount.”

See further in this regard the discussion in Cross & Cheung, above, at pp 277 et seq.

13.Ms Agnes Chan for the respondent accepts that in not affording a one-third discount in this case, the judge erred. Nonetheless, she seeks to uphold the sentence on the basis that “the learned judge was too lenient in adopting a starting point of 9 years’ imprisonment.”

14.What has exercised us in this regard is the ‘bank account’ feature in this case – that is to say, the taking of an ATM card and the demand for the PIN – and the proposed detention of the victim by this applicant whilst his confederate in crime went off to steal funds. It is a feature to which reference was made in R v Sun Sheung Chung, CACC 152/1993, 15 October 1993 unreported, namely:

“Where bank account-operating material is extracted along with other property, then this is the position.  First, the potential for loss of the victim is increased, possibly very considerably.  Secondly, the potential for gain to the criminal is correspondingly increased.  Thirdly, the sense of violation suffered by the victim is, it is not difficult to imagine, heightened.  And, fourthly, the period and scope of the criminal activity involved is extended.

9.  This ‘bank account’ feature, as we will term it, is appearing with mounting and alarming frequency in robbery offences against householders and others.  The time has come to warn malefactors – and this warning will become more and more firm as time passes if this sort of things continues unabated.  Such a feature is a considerable element of aggravation; and it will attract additional punishment as a result.”

15.In that case a sentence of 9 years’ imprisonment was approved. The victim, a woman alone at home, was awoken in the early hours of the morning to find a masked man standing over her bed with a chopper. Jewellery and cash were taken as well as a bank cash withdrawal card. She was tied to a chair and covered with a quilt before the offender made off. The difference between that case and this was that there was but one offender and so there was no question of someone intending to detain the victim after effecting theft of goods within the premises, as happened in this case.

16.In HKSAR v Kwok Tung and another CACC 551/2003, 15 June 2004, unreported, two men entered an office in commercial premises at 8 p.m. of an evening, one armed with a knife and the woman there had her hands tied with wire and her head covered with a T-shirt. One of the men asked for the PIN numbers of the bank and credit cards in her wallet and she was told that if she did not co-operate she would be stabbed twice; provided the number for one of her cards and her eyes and mouth were covered with tape. At this time the police arrived and the applicants fled. Each of the defendants had a bad criminal record in that case. After pleas of guilty the defendants were sentenced to six and 6½ years’ imprisonment respectively. The Court of Appeal held that although the sentences were at the high end of the scale they were within the permissible range having regard to all the aggravating circumstances. The difference between that case and this is that that robbery was at commercial premises whereas this was at private premises.

17.In this case the judge evidently took into account the theft of the ATM card and the acquisition of the PIN number. Sentencing is not a question of precise mathematical progression for each aggravating feature and looking at the circumstances as a whole we do not propose to interfere with the 9 year sentence he would have imposed but for the plea, though that was not a day too long. We do however affirm the sentiment in Sun Sheung Chung that the ‘bank account’ element, as it was there referred to, is a considerable aggravating feature in these cases. We would add that detention of a victim by a robber whilst his colleague goes off to secure cash from an ATM machine is a still further aggravating feature which, depending on the facts as a whole, may warrant a point higher than that reached in this case before deduction for the guilty plea. In this case, it so happens, the detention was for a very brief period.

18.In the event, we grant the applicant leave to appeal against sentence, treat the hearing of the application as the appeal, allow the appeal, set aside the sentence of seven years’ imprisonment and substitute therefor a sentence of six years’ imprisonment.

Mr Bernard Yuen, instructed by Messrs Tse Yuen Ting Wong, assigned by Director of Legal Aid, for the Applicant

Ms Agnes Chan, SPP, of the Department of Justice, for the Respondent