HKSAR v. Ku Kwok Wai and Another

CACC 14/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 14 OF 2012

(ON APPEAL FROM DCCC 1004 OF 2011)

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BETWEEN

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Before : Hon Yeung VP and Lunn JA in Court

Date of Hearing : 18 July 2012

Date of Judgment : 18 July 2012

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.The applicants seek leave to appeal against the sentences of 2 years and 2 months’ imprisonment imposed on them by Deputy District Court Judge Woodcock, following their pleas of guilty on 3 January 2012 to a single charge of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210.

THE CHARGE

2.The charge alleged that on 12 August 2011 the applicants jointly robbed Ms Tsoi Ka Ying in the lift lobby of premises at 73, Chun Yeung Street, in North Point.

THE FACTS

3.The applicants accepted that shortly before 5 a.m. on 12 August 2011 they had robbed Ms Tsoi, a 17-year-old student, of an i-Phone as she stood in the lift lobby waiting to take a left in premises at 73, Chun Yeung Street, in North Point.  They had followed her in the street from Kings Road.  The 2^nd applicant waited at the entrance of the premises, acting as a lookout.  The 1^st applicant entered the premises and, having approached Ms Tsoi from behind as she was engaged in a conversation on her i-Phone, pushed her in the back forcefully, snatching the i-Phone from her hand and running off.  Ms Tsoi shouted out “Robbery!”

4.The two applicants fled from the premises pursued by police officers who had watched them from the time that they were following Ms Tsoi Ka Ying in Kings Road.  The 1^st applicant fell to the ground and was arrested by police officers.  The i-Phone was recovered nearby.  The 2^nd applicant was also arrested.

5.Having been cautioned, each of the applicants admitted their involvement in the robbery.  The 1^st applicant admitted that he had snatched the i-Phone from Ms Tsoi, saying that he intended to sell it.  The 2^nd applicant admitted having acted as a lookout in the robbery.

REASONS FOR SENTENCE

6.Although the applicants were sentenced by the judge separately on different dates, in her reasons for sentencing each of them the judge adverted specifically to the same factors as relevant to the circumstances of the robbery, namely:

(i)   that the victim was confronted by only one robber;

(ii)   no weapon was used;

(iii)   the robbery was committed in a public place; and

(iv)   the violence used against the victim was a push in the back, which did not result in any injuries.

Mitigating factors

7.The judge said that she had regard in the case of each applicant to the fact that they were young persons, aged 21 and 22 respectively, of clear criminal record, who had admitted the offence to the police and then pleaded guilty in court.

8.Noting that there were no ‘tariff’ guidelines for the offence of unarmed robbery, the judge said she had regard to several judgments of this court in determining the appropriate starting point to be taken for sentence, namely HKSAR v Ting Chiu [2003] 3 HKLRD 378; HKSAR v Lam Ka Hung (CACC 294/2003; unreported-29 January 2004); R v Yau Kwok Tung [1987] HKLR 782.  In the result, the judge noted that there was a significant difference in sentencing between an armed and unarmed robbery.  Nevertheless, she said that the appropriate sentence depends on the “individual set of facts and circumstances”.  Further, that a sentence of 4 years’ imprisonment referred to in the cases to which she adverted was not a ‘tariff’ sentence.

Starting point

9.The judge said that she took a starting point for sentence of 3 years and 3 months’ imprisonment.

Discount

10.The judge afforded each of the applicants a discount from the starting point taken for sentence of one third to reflect their pleas of guilty.

Sentence

11.Accordingly, the judge imposed sentences of 2 years and 2 months’ imprisonment on each of the applicants.

THE GROUNDS OF APPEAL AGAINST SENTENCE  

12.In the grounds of appeal against sentence advanced on the behalf of the applicants, Mr Whitehouse submitted that the starting point taken by the judge of 3 years and 3 months’ imprisonment was “manifestly excessive and too severe”.  He submitted that, given that the only violence used was a push in the back of the victim which resulted in no injuries, the circumstances of the commission of the offence, whilst technically robbery, were closer to that of theft.  In support of that submission, he pointed to the fact that the judge had said of the circumstances of the commission of the offence that they were “… one step up from a theft or snatching”.

A CONSIDERATION OF THE SUBMISSIONS

13.As the judge noted, in the judgment of this court delivered by Roberts CJ in Yau Kwok Tung a sentence of 4 years’ imprisonment after trial for an offence of robbery, in which the robbers were unarmed, was described as at the “top end of the tariff”.  In the case, the victim and his wife had been robbed at night by two robbers who, having successfully demanded that they produced their identity cards, searched them and removed $300 from the man.

14.In Ting Chiu this court said that 4 years’ imprisonment was the appropriate starting point for sentence in a robbery committed by four men of a couple as they were walking near Lion Rock, in which the man was relieved of $180 in cash and his wristwatch.  The court said that robbery by more than one robber was more serious than robbery by a lone robber, given the greater stress and pressure exerted on the victims.

15.In Lam Ka Hung this court quashed a sentence of 3 years and 4 months’ imprisonment imposed on the appellant for a single offence of robbery and imposed in its place a sentence of 2 years and 8 months’ imprisonment.  The female victim had her handbag snatched in the early evening as she made her way to her home in the block of flats in which she lived.  She was pushed to the ground where she struggled with the robber, sustaining a minor abrasion to a finger.

16.In HKSAR v Chan Sin Leung (CACC 48/2006; unreported-11 August 2006) this court quashed a sentence of 4½ years’ imprisonment imposed for three offences of theft and one of robbery and imposed in its place a sentence of 4 years’ imprisonment.  All the offences were committed on unsuspecting females whom the appellant approached by bicycle and from whom he snatched their necklaces.  The robbery charge resulted from the fact that one of the victims struggled with the appellant and he caused marks to her neck as he used force to remove the necklace.  The judge took 15 months’ imprisonment as the starting point for sentence in the theft charges and 3 years’ imprisonment for the robbery, which for pleas of guilty were reduced to 10 months’ for the theft charges and 2 years’ imprisonment for the robbery respectively. He ordered all the sentences to be served consecutively.   

17.In the judgment of the court delivered by Stock JA, as he was then, it was observed of the starting point taken for the theft offences that “it would have been appropriate for heavier sentences to be imposed for the aggravating feature that we have identified”.  That was a reference to the appellant’s criminal record for offences of theft, attempted theft, robbery and assault with intent to rob, which was described as “appalling”.  Of the starting point taken for the charge of robbery, Stock JA said (paragraph 6) :

“ … it might be said that the facts were not a great deal different from those of the theft charges and that the resulting term for that individual charge was high; nonetheless given the aggravating feature to which we have referred it cannot be said to be in itself manifestly excessive.”

18.In HKSAR v Lee Chi man (CACC 387/2006; unreported-25 June 2007) the applicant pleaded guilty to 3 charges of theft.  In each theft, he had snatched a necklace from the neck of his female victim.  The applicant had a criminal record which this court described as a “poor record”, including convictions for 6 robberies and 8 thefts.  The judge took a starting point for sentence of 2 years’ imprisonment for each offence, which he discounted by one third for the pleas of guilty.  The total sentence imposed on the applicant was 3 years and 4 months’ imprisonment.  This court dismissed the application for leave to appeal against sentence observing that, in light of the applicant’s criminal record, it might be that the starting point taken for sentence was not high enough.

19.As the judge observed, the circumstances of the commission of this offence was to be viewed as a “step up from a theft or snatching”.  The “step up” was simply the fact that the 1^st defendant pushed the young female victim in the back whilst snatching her i-Phone.  Clearly, she remained composed enough to shout out “robbery!”  From the perspective of Ms Tsoi, she would have been aware of the presence of one robber only.  On the other hand, Ms Tsoi was clearly targeted as the victim of the robbery.  As a young woman returning to her home alone in the early hours of the morning she was vulnerable to the kind of cowardly attack visited upon her.  The item of property stolen from her was valuable.  She and others in her situation are entitled to go about their business safely in the public parts of residential buildings.  Although the aggravating feature of a criminal record, indeed bad criminal records, which this court found relevant in some of the cases cited earlier was not a factor in this case, nevertheless we are satisfied that the starting point taken for sentence by the judge was appropriate.  No issue is taken with the discount afforded to the applicants.

Conclusion

20.Accordingly, in the result we are satisfied that the sentences imposed on the applicants were not manifestly excessive and the applications for leave to appeal against the sentences are dismissed.

Mr. Franco Kuan, SPP, of the Department of Justice, for the respondent

Mr. Frederic Whitehouse, instructed by C. Yu & Co., assigned by Director of Legal Aid, for the 1^st applicant and the 2^nd applicant