HKSAR v. Obiagwu Oluchukwu Christian

CACC 307/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 307 OF 2009

(ON APPEAL FROM HCCC 105/2009)

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Before: Hon Yeung JA, Beeson and Lunn JJ in Court

Date of Hearing: 8 October 2010

Date of Judgment: 8 October 2010

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J U D G M E N T

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Hon Beeson J (giving the Judgment of the Court):

1.The Applicant pleaded guilty in the Court of First Instance to one charge of Robbery and was sentenced by Deputy High Court Judge Mackintosh (as he then was) to 10 years’ imprisonment. He appealed against that sentence.

Facts

2.The facts admitted by the Applicant, a Nigerian national, revealed that he and another man (D2) pretended to be customers and went into the business premises of a company which provided cash remittance services and other services to Nigerian merchants in Hong Kong and their suppliers.

3.To effect their plan, the Applicant and his companion each produced a pistol-like object and knives; threatened a staff member with death if he moved and rendered a customer unconscious by hitting him on the head with the butt of the pistol-like object.  The staff member and customer were tied, gagged and blindfolded with adhesive tape and cable ties presumably brought by the robbers.

4.Two customers who entered the premises about 10 minutes later were threatened with pistol-like objects, forced to lie on the floor and one was relieved of his mobile phone.  The Applicant and D2 fled with US$169,433 in cash from the safe, a laptop computer and 3 mobile phones.

5.A report was made to police.  Two knives and an air pistol (the ‘pistol-like object’) were found at the scene.  About 12 hours later, the Applicant and D2 confessed to an acquaintance what they had done and led him to a guesthouse, where, in a room the acquaintance recovered cash of US$150,064, a laptop and a number of mobile phones. The police eventually arrested the Applicant and took charge of the recovered property.

6.Subsequently, the Applicant gave a Video Interview in which he admitted the details of the offence under caution.

7.The judge rightly considered this offence a very serious one for a number of reasons.  The Applicant and D2 targeted a vulnerable business, akin to a bank or a jewellery shop, which would be known or expected to have large amounts of cash on the premises.  Each robber had a substantial knife and carried a pistol-like object.  We examined the knives and the pistol-like objects.  The knives had 12” blades and the pistols, although they are said to be made of plastic, are significantly weighty.  One imitation pistol was flourished and used as a club.  The victims were threatened verbally with death as well as being bound, gagged and blindfolded.  One victim was rendered unconscious from a blow to the head with a pistol-like object.  A very largesum of cash was taken.

Grounds of Appeal

8.The Applicant, who represented himself, put forward home-made grounds of appeal in which he submitted that the sentence imposed on him was manifestly excessive and that it was excessively high when compared with sentences passed in similar cases.  He submitted details of a number of robbery cases he had gleaned from newspaper reports, which were comparable, in his belief, and showed that he had been sentenced unfairly.

9.Further, the Applicant set out details of the difficulties his family would face as a result of his being imprisoned, he being the sole breadwinner.  He complained that various letters from his family and friends, and doctors’ reports of the deaths of his son and uncle, had been put before the judge when he was sentenced, but had been ignored by the judge and had not resulted in any discount other than the standard one-third discount for a plea of guilty.

10.The Applicant had been legally represented at plea and all relevant matters were put before the judge.  The details of family hardship may have provided an explanatory background for the offence, but were not mitigatory.  Nor was the Applicant’s clear record in Hong Kong of great significance as mitigation given the nature of the crime committed; in any event the Applicant did not live in Hong Kong.  The judge adopted a starting point for sentence of 15 years after taking into account the circumstances of the robbery and considering precedent cases.  He gave the one-third discount to acknowledge the Applicant’s plea of guilty, stating: “That discount includes credit for other personal mitigation that you have and your remorse reflected by your plea of guilty”.

11.The judge commented, on the basis of R v. Yu Tai-wing [1995] 2 HKCLR 119, that it made no difference to the gravity of the crime whether real or imitation firearms were used, as the risk of the police opening fire and putting innocent bystanders at risk pertains in either situation and the fear and terror inspired by the display of real or imitation firearms is the same.  The Judge noted the careful planning that underlay the choice of target and the manner of carrying out the robbery.

12.He commended the Nigerian community which set out to locate the perpetrators of the robbery using their own network of informants and which succeeded in doing so within 12 hours of the robbery. Most of the cash was recovered as were the other stolen items.

13.It was no credit to the Applicant, or D2, that the property was recovered. The Nigerian community in Hong Kong adopted self-help measures to find the robbers with a view to improving community relations and to protect the good name of their community.

14.Before the judge, the Applicant advanced personal mitigation about his wife’s ill-health, the loss of his job and claimed to have fled Nigeria because he feared his life was in danger.  The judge was sceptical of this last claim given that the Applicant committed this offence within a week of arriving in Hong Kong – unlikely behaviour for a would-be refugee.  The fact that the robbery was committed by visitors to Hong Kong can be regarded as an aggravating feature.

15.The cases put before the court by the Applicant on this appeal (Secretary for Justice v. Li Man-biu & Others CAAR 4/2000, HKSAR v. Chu Kwok-yuiCACC 389/2009, HKSAR v. Dannis Yang Wan Hong CACC 307 of 2009 from HCCC 298/2009 and HKSAR v. Fu Choi Chung (unreported) CACC 367/2008) may have resulted in lighter sentences than that imposed on the Applicant, but the judge was concerned with the facts of this particular robbery. He was aware of the guidelines and adopted a starting point which was entirely proper.  Apart from the plea of guilty, there was no other cogent mitigation which would justify a lesser sentence.

16.Similar cases referred to us by the Respondent, HKSAR v. Fu Choi Chung (unreported) CACC 367/2008 and HKSAR v. Wong Wai Keung [2003] 3 HKLRD 39, show that the judge did not err in setting the starting point, nor in imposing the sentence of 10 years’ imprisonment.

17.There is no merit in this application for leave to appeal against sentence and the application is dismissed.

Ms Samantha Chiu, PP of the Department of Justice, for the Respondent

The Applicant, acting in person