HKSAR v. Tam Kwok Keung

[English Translation - 英譯本]
CACC 25/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 25 OF 2010

(ON APPEAL FROM DCCC NO.1315 OF 2009)

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Coram: Cheung JA and Barnes J

Date of Hearing: 21 July 2010

Date of Judgment: 21 July 2010

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JUDGEMENT

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Barnes J (giving the judgment of the Court):

1.The applicant pleaded guilty to one count of Attempted Robbery before Deputy District Judge Sham and was sentenced to 4 years and 4 months’ imprisonment. He applies for leave to appeal against sentence.

The facts of the case

2.The facts of the case were that the victim was a prostitute in a ‘one-woman brothel’. At around 10:30 pm on the night of the case, the applicant pressed the doorbell of the victim’s unit. As the victim was ‘receiving a customer’, she told the applicant to come later. The applicant arrived at the unit again at 11:18 pm. He negotiated the price with the victim. Both parties agreed that $100 was to be paid as the reward for providing sex service. After they had sex, the victim asked the applicant to pay. All of a sudden, the applicant took out a length of black-coloured electric wire from his shoulder bag and attempted to tie up the hands of the victim, at the same time declaring robbery. The victim resisted. The applicant tried to tie the neck of the victim with the electric wire, and hit her on the head with a remote control device. The victim continued to resist and raised hue and cry. The applicant then fled the scene leaving behind the electric wire. The victim, who was all naked, pursued hotly from behind but the applicant made good his escape. The victim then made a report to the police.

3.The police later found the applicant on the rooftop of the building where the unit was. Under caution, the applicant admitted that he tied up the hands of the victim with electric wire to rob her after having sexual intercourse with her, but the victim resisted, so he fled the scene after hitting her on the head a few times.

4.The victim of the case was injured. There were bruises on her forearm and forehead and laceration on the corner of her left eye.

Reasons for sentence

5.In passing sentence, Deputy District Judge took into account that this was not a case of Armed Robbery. After referring himself to the cases of Cheng Fuk Wa[1] and Lai Kwok Fai[2](transliteration)----two cases involving robbing ‘one-woman brothel prostitute’ with arms---and the facts of this case, he adopted 6 years as the starting point. The Deputy District Judge went on to point out that neither defendants of the above cases had sex with the prostitutes first before robbing them. The applicant, however, had used the sexual service but not paid for it. Citing the case of Luk Hau Cheung[3], he was of the view that the sentence should be increased to 6 ½ years to reflect the gravity of the case. Allowing the usual 1/3 discount, the applicant was sentenced to 4 years and 4 months’ imprisonment.

Ground of Appeal

6.Counsel for the applicant, Mr Newman Wong, advanced only one ground of appeal. He had no objection to 6 years being adopted as the starting point in sentencing, but he argued that the Deputy District Judge had erred in principle in increasing the term of imprisonment from 6 years to 6 ½ years on the ground that the applicant had, before robbing the victim, used the sexual service she provided without making payment.

7.Mr Wong argued that the applicant’s act of not paying the victim did not constitute any criminal offence in law. As the service provided by the victim in the transaction was immoral, she was not entitled to make a civil claim against the applicant in court. Although there is the offence of Making off without Payment under 18(1) of the Theft Ordinance, 18(3) provides that ‘Subsection (1) shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable.’ Mr Wong argued that imposing a heavier sentence on the applicant because he did not pay for the service he had received was inconsistent with public policy. Although the Deputy District Judge found that the applicant should not have availed himself to the sexual service without making payment, to increase the term of imprisonment by half a year because of $100 was proportionately excessive. Mr Wong considered that the appropriate sentence was one of 4 years.

Reply of the Respondent

8.Miss Chiu for the Prosecution accepted that the reason given by the Deputy District Judge for increasing the sentence was not appropriate. But she argued that in this case, the applicant posed himself as a customer, pretended to negotiate the price with the victim and exploited the vulnerability of her position to satisfy his selfish desire first before robbing her when she forgot to keep up her guard; he planned his actions and committed the offence with premeditation. The two sentence-enhancing elements, namely, acting with premeditation and exploiting the vulnerable, were present in this case, and in view of the facts of the case, she considered that adopting 6 ½ years as the starting point of sentence was not manifestly excessive.

9.Miss Chiu also argued that the amount of the reward did not affect the seriousness of the case or the extent of the sentence enhancement.

Discussion

10.Firstly, as Deputy District Judge Sham had expressly pointed out, although the applicant was equipped with a piece of electric wire with the intent to tie up the victim, this case did not concern Armed Robbery.

11.The Court of Appeal has pointed out clearly that the work nature of sex workers makes them vulnerable targets for robbers. Thus the Courts will pass deterrent sentences to ensure that they are free from being bullied; see the case of Lai Kwok Fai.

12.The Deputy District Judge had referred to two ‘one-woman brothel’ robbery cases in which weapon was used: scissors were used in the case of Lai Kwok Fai and chopper was used in the case of Cheng Fuk Wah. The sentencing starting points were 6 ½ years and 7 years respectively.

13.In this case, the applicant tried but failed to tie up the hands and neck of the victim with electric wire. In the end, he hit her on the head with a remote control device, causing her injuries.

14.As far as the seriousness of the case is concerned, though the Court could make reference to the cases of Lai Kwok Fai and Cheng Fuk Wah, the facts of this case are in fact not on a par with those of the above-mentioned cases. The fear or potential harm that a victim threatened with scissors or chopper is exposed to is far greater than one who suffers the attempt of being tied up with a piece of electric wire and hit on the head with a remote control device by the robber. On the other hand, the applicant had tried to tie the neck of the victim with electric wire; this exposed her to the risk of sustaining grievous bodily harm.

15.Citing the case of Luk Hau Cheung, Deputy District Judge Sham stated that not paying for the service rendered to him was something ‘for which a (the) defendant has not been charged or convicted’ and hence a ground for enhancing the sentence.

16.The applicant’s failure to pay for the sex service provided to him after using it does not constitute an offence at criminal law. The victim could not lodge a civil claim for it either. It was inappropriate for the Deputy District Judge to rely on the case of Luk Hau Cheung. Therefore, it was wrong in principle to increase the sentence by 6 months.

17.Taking into account all the facts of this case, in particular the fact that the applicant had attempted to tie the neck of the victim with electric wire, 6-year is an appropriate starting point. Allowing the applicant the usual 1/3 discount, the sentence imposed is one of 4 years. Though the difference between 4 years 4 months and 4 years is only 4 months, an error in principle made when passing sentence should nevertheless be rectified even when the difference is not great.

18.For the reasons given above, this Court grants leave to appeal, and treating this hearing as the appeal itself, we allow the appeal, the 4 years and 4 months’ imprisonment is set aside and substituted by 4 years’ imprisonment.

Representation:

Mr Newman Wong, instructed by Au & Associates, assigned by Director of Legal Aid for the Applicant

Miss Samantha Chiu Ping Yan, of the Department of Justice for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.