HKSAR v. Chu Kwok Yui

CACC 389/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 389 OF 2009

(ON APPEAL FROM HCCC 272 OF 2009)

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BETWEEN

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Before: Hon Yeung JA and Hartmann JA

Date of Hearing: 30 July 2010

Date of Judgment: 30 July 2010

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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.The applicant, Chu Kwok-yui, pleaded guilty to attempted robbery at the magistracy and was committed to the High Court for sentence.

2.On 30 October 2009, Deputy High Court Judge Geiser sentenced the applicant to 7½ years’ imprisonment. The judge adopted a starting point of 12 years and reduced it by one-third on account of the guilty plea. The judge further reduced the sentence by 6 months because of the applicant’s age, being almost 60 at the time of sentence and his clear record. The applicant seeks leave to appeal against sentence.

The Facts

3.The robbery took place at a Hong Kong Jockey Club betting center at Shamshuipo on Wednesday, 18February 2009, most likely to be a racing day, at about 11.30 p.m. when it was closed for business, but staff members, including a security guard, were still working.

4.The applicant, carrying a 10-inch knife in his hand and a shoulder bag with two bottles of thinner, followed a cleaner into the betting center. The security guard tried to stop the applicant, but failed. The applicant then placed the knife at the neck of a staff member and declared robbery, saying that he had a bomb with him. He then smashed the two bottles of thinner by throwing them at a counter before pointing the knife at another staff member.

5.The staff members struggled with the applicant to try to subdue him and in the meantime, a report was made to the police. When the police arrived, the applicant was still struggling with the staff members. Four of the staff members were injured, two quite seriously, as a result of the struggle. One of them suffered a 4% permanent disability although the judge did not place much reliance on it.

6.The applicant was arrested and under caution, he said he had to rob a Jockey Club betting center because he owed the bank over $1 million.

7.At a subsequent interview, the applicant claimed that he had no intention to rob, but just wanted to be jailed, as he was unable to repay the debt. The applicant said the knife was taken from his home and the two bottles of thinner were brought from a hardware store in Kweilin Street.

The Applicant’s Background and Mitigation

8.The applicant was born in the Mainland on 27 February 1950 and came to Hong Kong with his wife and son in 1983. However, the marriage broke down and he had to take care of the son with help from his mother. The applicant remarried in 1998, but the second wife also divorced him because of his poor financial capability.

9.The applicant said he had to support his retired parents, wife and son, but his income was insufficient and he had to resort to loans from eight credits cards and heavily mortgage his flat in order to make ends meet. The applicant also claimed that he had once withdrawn $200,000 to help his son to operate a computer shop, but it turned out to be a total failure.

10.The applicant said he was in a desperate position when he was asked to repay the debts. A check with the Caritas Family Crisis Support Centre indicated that the applicant had sought assistance as he had accumulated huge debts because of his gambling habit. It was suggested that there might have been a misunderstanding when the applicant told the Centre that he gambled on horses with small amounts only.

11.The applicant’s son, in a touching letter to the judge, said that the applicant was a responsible father and son who took good care of his parents, in particular his mother who had been admitted to an aged home after suffering a stroke. The son confirmed that the applicant had financially assisted him.

12.It was suggested that the offence was committed when the applicant, under grave financial difficulty, was confused and just took the risk of robbing the betting center and in so doing; he was actually prepared to be caught.

13.In his written mitigation, the applicant said he was full of remorse and asked the court to take into consideration his age and unblemished record. It was reiterated that the applicant was in a desperate financial situation and was confused at the time of the offence. It was also suggested that as the applicant is a first offender, a deterrent sentence should not be imposed and that this is a suitable case to temper justice with mercy.

14.Mr Shahmim K Khattak (Kelly Lam), on behalf of the applicant repeats the mitigating circumstances and emphasizes that the applicant was an amateur robber who was in fear and panic at the time of the robbery. Mr Khattak refers to a number of authorities and points out that the applicant suffered injuries himself in the robbery. He also reiterates that the applicant’s aged mother had a stroke and passed away after learning of the applicant’s arrest.

Discussion

15.Whatever were the causes, the applicant was clearly in deep financial difficulty when he committed the offence. However, financial difficulty and personal circumstances, however tragic, are not excuses for committing serious offences such as a robbery with the use of a knife and bottles of thinner, claiming that it was a bomb.

16.We have to say, this is quite a very bad case of robbery. It was clearly planned when the applicant entered a Jockey Club betting center shortly after the evening races had finished with a knife and two bottles of thinner that he had brought on a previous day. The applicant was aiming at high “stakes”.

17.The applicant threatened the staff members by pointing a knife at them, saying that he had a bomb. As a means of inflicting further fear, he smashed the two bottles by throwing them at the counter, thus spilling the thinner inside. The applicant’s attempt to instill fear into the staff members rendered the offence in question a very serious one. If the bottles of thinner were to catch fire, the consequences could be catastrophic.

18.We cannot ignore the fact that the applicant had used a knife to threaten the staff members after claiming that he had a bomb. It requires little imagination to appreciate the fear that the applicant had instilled on them. Also we cannot ignore that four staff members of the betting center were injured, two of them quite seriously, as a result of struggling with the applicant.

19.In HKSAR v Wong Wai Keung [2003] 3 HKLRD 39, the defendant pleaded guilty to two counts of robbery and one count of attempted robbery. The defendant entered banks with hoax bombs and notes containing threatening words. He also poured thinner onto the counters in aid of his demand for money. The Court of Appeal approved a 7-year sentence for each of the charges and a total sentence of 10 years.

20.The Court of Appeal further took the view that the robberies were as serious as robberies of banks with the use of imitation firearms, which attracts a starting point of 12-15 years’ imprisonment.

21.We agree with the judge’s sentiment that “an offence of this does call for a deterrent sentence in order to avoid copycat offences”. The offence is of such a nature that a deterrent sentence is called for even for a first offender.

22.On the other hand, the applicant only committed one offence and he had a clear record. Bearing in mind the nature of the offence and the circumstances in which it was committed, the 12-year starting point adopted by the judge is, in our view, too high. We are persuaded that a more appropriate starting point is 10 years’ imprisonment, which is a sufficient deterrent sentence on the facts of the present case.

23.The applicant pleaded guilty to the charge and is therefore entitled to the usual one-third discount. We will also give a further discount because of the applicant’s age and hitherto unblemished character as the judge did.

24.We are persuaded, balancing the factors for and against the applicant, that the proper sentence should be one of 6 years’ imprisonments.

Conclusion

25.We allow the application for leave to appeal against sentence. Treating the application as the appeal proper, we allow the appeal and reduce the applicant’s sentence from 7½ years to 6 years.

Miss Hermina Ng, PP of the Department of Justice for the Respondent.

Mr Shahmin K Khattak (Kelly Lam) instructed by Messrs Anthony So & Co assigned by the Director of Legal Aid for the Applicant.