HKSAR v. Cheung Tak Wa and Another

CACC305/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 305 OF 2010

(ON APPEAL FROM HCCC NO. 46 OF 2010)

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Before : Hon Hartmann JA, Lunn and Line JJ in Court

Date of Hearing : 24 February 2011

Date of Judgment : 11 March 2011

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JUDGMENT

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

1.The 1^st and 2^nd applicants sought leave to appeal the sentences imposed upon them by Deputy Judge Stuart‑Moore on 5 August 2010 following their pleas of guilty to the various counts on the indictment. Both applicants pleaded guilty to Count 1, a count of theft from their employer. The 1^st applicant pleaded guilty to Counts 2 and 4, namely the robbery of Ms Cho Ko Chun (“Ms Cho ”) on 14 July 2009 and administering chloroform to her with intent to rob her. The 2^nd applicant pleaded guilty to having conspired with the 1^st applicant on the same date to rob Ms Cho (Count 3). At the hearing of the applications we adjourned judgment, which we deliver now.

SENTENCES

2.The sentences of imprisonment imposed upon on the 1^st applicant were : Count 1 : two years and eight months; Count 2 : eight years and Count 4 : four years; all ordered to run concurrently.

3.The sentences of imprisonment imposed on the 2^nd applicant were : Count 1 : two years and eight months and Count 3 : four years.  One year of the sentence of imprisonment imposed in respect of Count 1 was ordered to be served consecutively to that imposed in respect of Count 3, making a total of five years’ imprisonment.

THE FACTS

4.The applicants were both employees of Medipharma Limited, a company which produced medicine and pharmaceutical products at premises in Texaco Road, Tsuen Road.  The 1^st applicant was a production worker, whereas the 2^nd applicant was a store assistant in the warehouse.  Whilst on duty the latter held the keys of the storeroom.  Having discussed and agreed upon a plan to rob a prostitute operating in a ‘one-woman brothel’, on the afternoon of 14 July 2009 they jointly stole some chloroform from the storeroom, which they removed from the premises in a small bottle provided by the 2^nd applicant when they finished work at about 6 p.m.

5.After work they travelled together to Yuen Long where they looked for a suitable victim to rob.  It was agreed between them that the 2^nd applicant would act as a lookout whilst the 1^st applicant carried out the robbery.  The 2^nd applicant provided a cloth with which the 1^st applicant was to administer the chloroform. Also, as was agreed, he was equipped with nylon string in order to tie up the victim.  In pursuit of their plan, the two applicants conducted surveillance on various one-woman brothels.  However, whilst in a KFC outlet discussing the proposed robbery, the 2^nd applicant decided not to take part in the robbery and, having advised the 1^st applicant not to go ahead with the robbery they parted company at 8:50 p.m.  The 2^nd applicant returned home, arriving in Tsui Bin Wai estate at about 9:10 p.m.

6.At about 10:30 p.m. the 1^st applicant entered the premises where Ms Cho plied her trade as a prostitute in On Wing Building, On Ning Road, Yuen Long.  It was agreed between them that Ms Cho would provide sexual services for $350.  While she was doing so, and the two of them were lying naked on a bed, the 1^st applicant produced the chloroform the fumes of which he blew towards her, describing it to her as cough medicine that would make them feel ‘higher’.  On the contrary, Ms Cho became dizzy whereupon the applicant sat on her legs and seized hold of her neck.  In response to her violent struggling the 1^st applicant poured chloroform from the bottle over her face, declaring robbery.  In response to his demands that she give him all her money, Ms Cho gave the 1^st applicant her handbag, inviting him to take the money in the handbag.  He did so.

7.As the 1^st applicant was dressing himself, Ms Cho seized the opportunity to flee, running from the flat crying out for help.  A female neighbour responded but the 1^st applicant was able to make good his escape. However, he was forced to do so barefoot, leaving behind various items of his belongings including his identity card.  One or two minutes later he returned to Ms Cho’s premises offering to return the money that he had taken from Ms Cho.  Although the 1^st applicant struggled to resist the attempts of Ms Cho and her various neighbours to overpower him they were able to subdue him and a report was made to the police.

8.Having been arrested and cautioned for the offence of robbery by a police officer the 1^st applicant admitted not only his part in the robbery but identified the 2^nd applicant as having participated in part of the enterprise.  As a result of that information, the 2^nd applicant was arrested at his home in the early hours of the following day.  In a subsequent video recorded interview, the 2^nd applicant accepted that he and the 1^st applicant had stolen the chloroform with which they planned to rob a prostitute, in which robbery 2^nd applicant was to act as the lookout.  Having conducted surveillance to identify a suitable target for the robbery he told the 1^st applicant that he was withdrawing from the enterprise, left him and returned home.

MS CHO’S INJURIES

9.Ms Cho was treated first at the A & E Department of Pok Oi Hospital from which she was transferred to Tuen Mun Hospital.  She was found to have multiple superficial burn wounds over the back and left side of her neck and scratch marks on the front of her neck and upper chest.  Also, she had a bruise over her left eardrum.  She was given eye medication and discharged on 18 July 2009.

REASONS FOR SENTENCE

10.In passing sentence, the judge noted the applicants had no previous criminal convictions and were young men of 22 and 24 years of age.

11.The judge determined that the use of chloroform in the course of the robbery was a “grossly aggravating factor”, stating that it was clear that if the robbery had gone to plan Ms Cho would have been left unconscious and tied up in her own premises.  He endorsed as realistic the acceptance by the 1^st applicant’s counsel that the robbery was “brutal and very nasty”.  Determining that the theft of the chloroform and its subsequent administration “very considerably aggravate the offence of robbery”, the judge stated that he did not propose to make the sentences for those offences consecutive to that imposed in respect of the robbery, rather he stipulated that he enhanced the initial starting point taken for robbery by five years’ imprisonment to a total of 12 years’ imprisonment.  The judge identified starting points of four years and six years’ imprisonment in respect of Counts 1 and 4, namely theft and administering chloroform respectively.

12.The judge discounted the sentences identified as the starting points by one third to reflect the 1^st applicant’s pleas of guilty.

13.In determining the appropriate starting points to be taken for sentence for the 2^nd applicant in respect of Counts 1 and 3, the judge acknowledged that the 2^nd applicant was to be given credit not only for having withdrawn from the planned robbery but also for having tried to persuade the 1^st applicant to desist in the robbery.  Of the theft, he noted that it represented a “gross breach of trust” and that the gravity of the offence lay not in the value of the property but in the purpose for which it was stolen.  In the result, he took a starting point of four years’ imprisonment in respect of Count 1, theft, and six years’ imprisonment in respect of Count 3, conspiracy to rob.  Of the latter starting point, he stated that it contained no element of aggravation on account of the theft or use of the chloroform.

14.Having discounted the starting points taken for sentence in respect of the 2^nd applicant by one third to reflect his pleas of guilty, the judge ordered that one year of the sentence of imprisonment imposed in respect of Count 1 be served consecutively to the sentence imposed in respect of Count 3, making a total sentence of five years’ imprisonment.

GROUNDS OF APPEAL AGAINST SENTENCE

15.Mr Philip Ross, who appears on behalf of both the applicants, submits that the starting points taken by the judge for the offences of robbery and that of conspiracy to rob, namely 12 years and six years respectively, were manifestly excessive.  He submits that the guidelines handed down by this Court in its judgment in R v Mo Kwong Sang [1981] HKLR 610 were relevant.  Even if chloroform was to be regarded as a “dangerous weapon”, as referred to in that judgment, the appropriate starting point for robbery, Count 1, was eight years’ imprisonment.  Further, since the judge had identified starting points of 12 years and six years’ imprisonment respectively for the offences of robbery and conspiracy to rob, it was to be inferred that the judge had determined that the 2^nd applicant’s culpability in respect of the latter offence was one half that of the 1^st applicant’s in respect of his commission of the actual robbery.  Accordingly, the appropriate starting point in respect of Count 3 was four years’ imprisonment.

16.Mr Ross submits that the starting point identified by the judge of six years’ imprisonment in respect of the offence of administering chloroform is also manifestly excessive.  Whilst he accepts that this Court has not articulated any guidelines relevant to sentencing for that offence, he suggests that a starting point of six years’ imprisonment is out of line with the sentences imposed in other cases of offences contrary to section 21 of the Offences against the Person Ordinance, Cap. 212 (see the judgments of this Court in R v Ng Yuk Wing, CACC 406/1994,unreported, 25 February 1995; R v Tso Kam On, CACC 487/1996, unreported, 29 April 1997 and HKSAR v Hashimi Habib Halim, CACC526/2001, unreported, 13 March 2003).

17.Mr Ross submits that the starting points of four and six years’ imprisonment identified by the judge in respect of Counts 1 and 3, theft and conspiracy to rob, were manifestly excessive, given that the 2^nd applicant had withdrawn from the conspiracy to rob, and that the judge had erred in identifying the use to which the chloroform was put as an aggravating feature of the commission of the theft.

18.On behalf of both the applicants it was contended that, since all the offences were committed within a short period of time, the overall criminality of the applicants would have been properly reflected in the imposition of concurrent sentences of imprisonment.

A CONSIDERATION OF THE SUBMISSIONS

19.In respect of the 1^st applicant, it is clear that the judge adopted a global view of sentence, determining to enhance the starting point taken for the offence of robbery to 12 years’ imprisonment to reflect the fact that the offences of theft and the subsequent administering of the chloroform to Ms Cho “very considerably aggravate” the offence of robbery.

20.In Attorney-General v Lee Po Man [1992] 2 HKCLR 70, on an application for a review of sentence, namely a Training Centre Order, this Court said that the sentencing court was entitled to take a ‘global’ view of sentence in sentencing the defendant following his pleas of guilty to one count contrary to section 21 and another count of forcible detention contrary to section 42 of the Offences against the Person Ordinance.  In that case the victim, an eight-year-old boy, had been lured away from his route to school on a pretext and had been rendered unconscious by the use of chloroform soaked tissue.  He was incarcerated for over 24 hours and repeated demands made of his parents for the payment of money.  Fortunately, the police intervened and arrested the defendant and released the boy.  In the judgment of the court, Silke VP said that in taking a global view of sentence the sentencing court could :

“... impose sentences which would take into account both the offences. A starting point here of 10 years would not have been inappropriate.”

21.We are satisfied that in the instant case the judge was entitled to take a global view of sentencing.  At particular issue in the application on behalf of the 1^st applicant, is whether in taking that global view of sentence and in stipulating a starting point of 12 years’ imprisonment in respect of the count of robbery, after taking into account aggravating factor of the offences of theft and the administering of the chloroform, the judge had erred in his assessment of the gravity of the circumstances of the commission of those offences and in particular the sentences that he took as the starting point for those offences.

Administering chloroform — a starting point of six years’ imprisonment (Count 4)

22.It is to be noted at the outset that section 21 of the Offences against the Person Ordinance provides for a penalty of life imprisonment.  Clearly, it is a serious offence.  Of the toxic effects of chloroform the applicant accepted the Summary of Facts in which its obvious dangers were described : depressant effects on the central nervous system which can lead to respiratory arrest and/or asphyxia caused by vomiting and toxic effects on the heart and central nervous systems which develop rapidly.  As noted earlier, the chloroform not only rendered Ms Cho dizzy but also she was left with multiple superficial burn wounds over her neck.  She was detained in hospital for over three days.

23.This Court has said repeatedly in its judgments that, other than in cases where guidance or guidelines have been articulated, an examination in subsequent appeals of its judgments in respect of sentence is of little assistance, given that each case is made up of its own unique matrix of facts.  Nevertheless, an examination of the cases cited by Mr Ross in support of his submission that the sentence of six years’ imprisonment, taken as a starting point in respect of the offence of administering chloroform, is manifestly excessive affords him little support.  A range of sentences have been imposed.

24.In Ng Yuk Wing this Court described as well merited an overall sentence of 11 years’ imprisonment imposed after trial on the applicant, which total comprised a sentence of four years’ imprisonment for administering an overpowering drug, namely a solution of ammonium 22% in strength, with intent to commit rape.  The sentence of four years’ imprisonment was ordered to be served consecutively to the sentence of seven years’ imprisonment imposed in respect of the rape offence.

25.In Tso Kam On this Court did not interfere with a total sentence of eight years’ imprisonment imposed on the applicant after his plea of guilty to five counts of administering stupefying drugs with intent to commit an indictable offence, namely theft.  On each occasion over a short period of time the applicant provided the drivers of light goods vehicles, whose services he had hired, drinks spiked with triazolam, which induced drowsiness and confusion.  Then, he stole their property.

26.Finally, in Hashimi Habib Halim this Court did not interfere with sentences, imposed following the applicant’s pleas of guilty, of eight years in respect of three counts of administering a stupefying drug with intent to commit theft, for which latter three offences the applicant had been sentenced to four years’ imprisonment ordered to be served concurrently with the offences contrary to section 21 of the Offences against the Person Ordinance.  The applicant had tricked the victims, all businessmen visiting Hong Kong, to consume drinks spiked with lorazepam, which rendered them unconscious, and then had stolen goods from their respective rooms in Chungking Mansions.  Although the Court did not interfere with the ‘global’ approach taken by the judge in stipulating a starting point of 10 years’ imprisonment in respect of the section 21 offences, it was observed that the same result could have been achieved by imposing a lesser sentence in respect of each of the three charges and ordering part of each sentence to be served consecutively with the others with the result that the same total sentence was achieved.

27.It is to be noted that in Tso Kam On and Hashimi Habib Halim the stupefying drugs were administered with the intention that the applicants commit the offence of theft only.  Obviously, robbery and for that matter rape are more serious offences.  We are satisfied that in the circumstances of this case, in particular having regard to the fact that as a result of the administration of the chloroform Ms Cho sustained multiple, albeit superficial, burn wounds on her neck and required hospitalisation, the judge was entitled to take a starting point of six years’ imprisonment for the offence the subject of Count 4.

Theft (Count 1)

28.In stipulating a starting point of four years’ imprisonment for the theft of the chloroform, the judge did not state, as Mr Ross submits in the Grounds of Appeal, that he took into account the use to which the chloroform was put.  Rather, he stated that he had regard to the purpose for which it was stolen, namely to be administered to a prostitute, once such a victim had been identified, namely facilitating robbery.  Further, he had regard to the fact that the theft represented a “gross breach of trust”, given that the applicants were employees stealing from their employer.  Clearly, those were highly relevant, cogent factors in determining the gravity of the offence of theft, which wholly justified the judge’s determination that the offence was “serious”.  It is to be remembered that chloroform is a substance subject to the provisions of the Pharmacy and Poisons Regulations of the Pharmacy and Poisons Ordinance, Cap. 138.  In all the circumstances, we are satisfied that the judge was entitled to take a starting point of four years’ imprisonment.

Robbery (Count 2)

29.We agree with Mr Robert KY Lee’s submission that the guidelines articulated by this Court in Mo Kwong Sang are not directly relevant to consideration of sentence in this case.  Whether or not chloroform falls to be considered as a “dangerous weapon” in the context of those guidelines, and we are inclined to the view that it does not, it is clear that the circumstances of this case are different from those envisaged in that case.  The chloroform was not simply displayed it was actually used to render Ms Cho dizzy and vulnerable to the assault which followed, so that in her resulting state of fear she complied with the demand that she hand over her money.

30.In identifying a starting point of 12 years’ imprisonment for the offence of robbery, the judge stated that in doing so he was enhancing the starting point for robbery by five years’ imprisonment, to take into account the very considerable aggravating factor of the offences of theft and administering the chloroform.  Clearly, absent those factors his initial starting point for the robbery was seven years’ imprisonment.  Given that the robbery was of a woman, alone in her own premises at night, and that she was subjected to violence that required hospitalisation we are satisfied that the judge was entitled to take that initial starting point.

31.We accept Mr Lee’s submission that the judge was entitled to reflect the fact of the commission of the offences related to both the robbery (theft and administering chloroform in respect of the 1^st applicant) and the conspiracy to rob charge (theft in respect of the 2^nd applicant) in the overall level of sentence imposed.  We reject Mr Ross’s submission that the judge ought to have ordered that the sentences imposed on each of the applicants for the various charges be served concurrently.  The judge was entitled to take a global approach to sentence in respect of the 1^st applicant.

32.Although Mr Lee sought to defend the starting point taken on a global view by the judge offences for the committed by the 1^st applicant of 12 years’ imprisonment as not manifestly excessive, he conceded that it was to be viewed at the ‘high end’ of the appropriate range of sentence.  He suggested that the appropriate range for that starting point was 10 to 12 years’ imprisonment.

33.In determining the appropriate enhancement of sentence for the robbery, to reflect the aggravating factors of the other two offences, it is important to bear in mind that the risk to health and even life posed by the administration of chloroform to a person lies in the adverse consequences to the respiratory and cardiac systems of inhalation of chloroform.  In the illicit administration of chloroform, commonly the assailant holds and presses a cloth soaked in chloroform over the victim’s mouth and nose until unconsciousness results.  By contrast, at first the 1^st applicant merely blew the fumes from the chloroform towards Ms Cho, telling her that it would make her feel “higher”.  It would seem that the 1^st applicant was tricking her.  That conduct was utterly bizarre.  Although Ms Cho did become dizzy, it is to be noted that when she was examined in hospital later that evening it was observed of her that she had “no shortness of breath and oxygen saturation was normal”.  The 1^st applicant did not have recourse to further use of the chloroform until his physical attack on Ms Cho was met with a violent struggle.  Then, he used the chloroform again, not in an obvious attempt to render her unconscious but by pouring the chloroform over her neck causing her pain and no doubt fear from the burning effects of the chemical.  It may have been the case that the 1^st applicant thought that pouring the chloroform onto Ms Cho may have the effect of causing her to lose consciousness.  However, the point remains that his actions in this regard did not in fact expose her to the more serious consequences that follow inhalation.

34.Although the circumstances of the robbery were properly to be described, as was accepted on behalf of the 1^st applicant, as “brutal and very nasty” the bizarre circumstances of the administration of the chloroform, notwithstanding the fact that the application of a corrosive fluid to her was serious, renders the 1^st applicant’s culpability less than had he forced Ms Cho to inhale the chloroform.  In the result, we are satisfied that the overall starting point for sentence taken by the judge of 12 years’ imprisonment was too high.  In our judgment, the appropriate starting point was 10 years’ imprisonment.

Conspiracy to rob (Count 3)

34.              The 2^nd applicant was not only a party to a conspiracy to rob with the 1^st applicant but also had advanced that conspiracy by his acts to a significant extent. Whilst the 1^st applicant was to effect the robbery, equipped with chloroform, a green fibre cloth and nylon string, the 2^nd applicant was to be the lookout. Clearly, it was intended that the chloroform be administered to the victim by the cloth being held over her mouth and nose.  As the judge observed, the plan called for the victim to be rendered unconscious and tied up.  The 2^nd applicant participated in various acts in furtherance of the conspiracy, including carrying out observation in Yuen Long to identify an appropriate target of the robbery.  Clearly, he had participated until a late stage in putting into effect the plan to commit a grave crime. 

35.Nevertheless, the fact that the 2^nd applicant had withdrawn from the conspiracy to rob, had tried to persuade the 1^st applicant not to proceed with the robbery and had left his company and returned home an hour or two before the commission of the robbery were powerful factors in mitigating his earlier culpable conduct.  His withdrawal brought the conspiracy to rob to an end.  The 1^st applicant committed robbery alone.

36.In those circumstances, in our judgment the starting point of six years in prison taken by the judge was too high.  A starting point of 4½ years’ imprisonment adequately reflects the culpability of the 2^nd applicant for this offence.  That starting point for sentence is to be discounted by one‑third to reflect the plea of guilty.

TOTALITY OF SENTENCE

37.In ordering that one year of the sentence of imprisonment imposed in respect of Count 1 be served consecutively to that imposed in respect of Count 3, the judge did not there and then give an explanation for that order.  However, immediately before so ordering he had stated in terms that the fact of the theft was not an element taken into account in determining the appropriate sentence for the conspiracy to rob offence.

38.In the result, we are satisfied that it was entirely appropriate that the judge reflect the gravity of the circumstances of the commission of the theft by way of an order that part of that sentence be served consecutively to the appropriate sentence to be imposed in respect of the conspiracy to rob.

CONCLUSION

39.For the reasons given earlier, we allow the 1^st and 2^nd applicants’ applications for leave to appeal against sentence and treat the hearing of the applications as the hearing of the appeals.  We quash the sentence of eight years’ imprisonment imposed in respect of Count 2 and in its place impose a sentence of six years and eight months’ imprisonment.  We make no order in respect of the other sentences.  Accordingly, the total sentence of imprisonment imposed on the 1^st applicant is six years and eight months.

40.We quash the sentence of four years’ imprisonment imposed on the 2^nd applicant in respect of Count 3 and in its place impose a sentence of three years’ imprisonment.  We make no order in respect of the other sentences.  Accordingly, the total sentence of imprisonment imposed on the 2^nd applicant is four years’ imprisonment.

Mr Robert K.Y. Lee, SC, SADPP of Department of Justice, for HKSAR

Mr Philip Ross, instructed by the Legal Aid Department, for the 1^st and 2^nd Applicants