HKSAR v. Wong Kam and Another

CACC 520/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 520 OF 2011

(ON APPEAL FROM HCCC NO. 364 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.On 13 September 2011, the two applicants pleaded guilty at committal to charges of robbery and wounding. On 29 November 2011, Beeson J sentenced the first applicant to a total term of 12 years’ imprisonment and the second applicant to a total term of 10 years’ imprisonment.

2.The applicants now apply for leave to appeal against sentence.

The offences

3.There were four charges for which the applicants were committed.  By Counts 1 and 2, the first applicant alone was charged with robbery contrary to s. 10 of the Theft Ordinance (Cap. 210) at two different locations in Tsuen Wan on 12 October 2010.  By Count 3, both applicants were charged with robbery contrary to s. 10 at a hotel in Yau Ma Tei on 17 October 2010.  By Count 4, both applicants were charged with wounding with intent contrary to s. 17(a) of the Offences against the Person Ordinance (Cap. 212) at a games arcade in Mong Kok on 17 October 2010.

4.The applicants respectively admitted the summary of facts against them.

5.The robbery, the subject of Count 1, took place at about 2 pm on 12 October 2010 when the first applicant, apparently under the influence of drugs, entered the mobile phone shop and robbed the shopkeeper (PW1) of a mobile phone, worth $2,180, and a Bluetooth headset.  In the course of the robbery, he claimed he was a member of the 14K triad society and he used a 25 cm long knife to threaten the shopkeeper and to stab him on the right wrist, causing a 0.5 cm stab wound which required two stitches.  Before leaving the shop, the first applicant threatened the shopkeeper that he would come back to look for him if there was any trouble.

6.The first applicant then moved on to an optical shop in Tsuen Wan and committed the robbery, the subject of Count 2, at about 3 pm on 12 October 2010.  Here, the first applicant, again appearing to be under the influence of drugs, claimed to be a member of the 14K triad society and demanded lenses for a low price, threatening that if this request was not complied with, the shopkeeper (PW3) would be chopped.  He took out a 45 cm long knife from his shoulder bag and swung it around.  After about 30 minutes in the shop, he took away a pair of sunglasses worth $1,880 and then left.

7.Counts 3 and 4 were both committed on 17 October 2010 by both applicants acting together with other men.  The robbery, the subject of Count 3, involved the two applicants going to a hotel on the 3/F of a building in Nanking Street in Yau Ma Tei with two other men at about 7.25 am.  All of them were wearing surgical masks.  One of the other two men took the lead and approached a female member of staff (PW4) at the cashier’s counter.  He took out a 30 cm long knife and chopped her three times. He also tried to pull out the cable of the hotel’s CCTV system and then chopped another female member of staff (PW5) who was also on duty at the cashier’s counter.  The man then went behind the counter, opened a drawer and extracted $10,341 in cash from it which he put into his trouser pocket.  The man kicked the doors of two rooms in the hotel and then left together with the two applicants and the other man who was with the group.  During the course of these events, the first and second applicants were each holding a wooden pole.  The first applicant told the two female members staff not to shout.  The second applicant stood guard, holding a wooden pole.

8.PW4 was admitted to hospital on the day of the robbery suffering from abrasions over her left forearm and right thigh and a 5 cm laceration over her left forearm and a 5 cm laceration over her left hand.  She had suffered a complete cut of the extensor of her middle, ring and little fingers.  There was a fracture of the base of the 3^rd and 4^th metacarpal bones, on the distal part of the hamate.  The laceration on her distal forearm extended to the depth of subcutaneous tissue.  She underwent tendon repair, metal wire fixation of the fractures and skin suturing and was discharged from hospital the following day.

9.PW5 was also admitted to hospital on the day of the robbery suffering from a 5 cm cut wound over her scalp and a cut wound of about 10 cm on her left upper arm.  There was a 70% cut of the radial nerve and laceration of the muscles of her left arm.  The radial nerve and muscle injuries were repaired and her scalp wound was sutured and she was discharged from hospital the following day.

10.The wounding, the subject of Count 4, took place later the same day, 17 October 2010, at about 10.55 pm at a games arcade in Mong Kok.  A security guard (PW6) was outside the game centre and noticed the first applicant and one Fong Wai-dick shouting at the staff.  When the security guard approached them, Fong told him to go outside.  The first applicant put his hand inside his bag and Fong tried to stop him.  The first applicant then pushed the security guard and he and Fong assaulted him with their fists.  During the struggle the first applicant had a 35 cm long knife in his hand with which he stabbed the security guard.  The guard used a chair to defend himself and Fong used a chair to hit the guard.  The second applicant then joined the assault on the security guard and after some time Fong and the second applicant fled the scene, followed by the first applicant with his knife.  The CCTV system of the games arcade captured the incident showing the first applicant stabbing the security guard, the second applicant kicking the guard and Fong using a chair to hit the guard.

11.PW6 was admitted to hospital in critical condition.  He had suffered stab wounds to the left anterior chest, lower right chest, right arm and right leg.  He had also suffered abrasions to the right side of his face and superficial lacerations on his left arm, left elbow, left leg, left knee and right chest.  There was a deep laceration of his left chest wall and he suffered a small left pneumothorax and a small amount of left haemothorax.  All his wounds were sutured and he was discharged from hospital on 21 October 2010.  He suffers from adjustment disorder and has been assessed as having a permanent loss of earning capacity of 4%.

12.The two applicants were arrested two days later on 19 October 2010 at a hotel in Tsuen Wan.  Under the apparent influence of drugs, the first applicant heavily resisted arrest.  A black shoulder bag belonging to the first applicant was found, containing a 15 inch (38 cm) long knife in a sheath, five balaclavas and five pairs of black gloves.  In a drawer in the room, two further knives, both about 18 inches (45 cm) long, were found.  The second applicant was arrested outside the room and was carrying a bag in which was found three knife blades and a knife grinder.

13.Under caution, the first applicant denied the offences and claimed he was at the hotel to look for a friend.  The second applicant admitted that he together with the first applicant and two others went to the hotel in Yau Ma Tei to carry out a robbery.

14.In subsequent video recorded interviews, the second applicant stated that the first applicant had asked him and another two men to go to the hotel in Yau Ma Tei by taxi.  He admitted carrying a wooden rod and that the first applicant was carrying the three knives found in the hotel room in his bag.  He also admitted going to the games arcade in Mong Kok with the first applicant and Fong and that the three of them had assaulted a member of staff.

The sentences

15.The Judge referred to the guidelines for robbery offences in HKSAR v Mo Kwong Sang [1981] HKLR 610.  For the first applicant on Count 1, she took a starting point of 9 years and discounted that by one-third to reflect his guilty plea, resulting in a sentence of 6 years.  She applied the same starting point and discount for Count 2.

16.For Counts 3 and 4, the Judge took a starting point of 12 years and discounted that to 8 years for each offence.

17.She then took totality into account and ordered that for Counts 1 and 2, the sentences be concurrent.  However, she ordered that three years of the term on Count 3 were to be consecutive to the sentence on Counts 1 and 2 and three years of the sentence on Count 4 were to be consecutive to the sentences on Counts 1, 2 and 3, making a total of 12 years’ imprisonment.

18.For the second applicant, the Judge took a starting point of 12 years on Count 3, which she discounted to 8 years for the guilty plea.  In respect of Count 4, she took a starting point of 9 years and discounted that to 6 years.  She ordered that 2 years of the sentence on Count 4 be consecutive to the sentence on Count 3, making a total of 10 years’ imprisonment.

19.It is also material to mention that Fong was sentenced by a different judge in the District Court on 16 November 2011 (in DCCC 1078/2011) in respect of the wounding offence which is the subject of Count 4. The judge in that case took a starting point of 5 years for the wounding and discounted that to 40 months’ imprisonment for Fong’s guilty plea.

The perfected grounds of appeal

20.By amended perfected grounds of appeal against sentence, the first applicant advances three grounds of appeal.  First, it is contended that the starting point for each of Counts 1 to 4 was too high.  Secondly, it is contended that the differential in the sentence passed on Fong in respect of the offence giving rise to Count 4 is such as to generate a legitimate sense of grievance.  Thirdly, it is contended that the total sentence of 12 years after pleas was wrong in principle and/or manifestly excessive.

21.The second applicant advances four grounds of appeal.  First, it is contended that the starting point for each of Counts 3 and 4 was too high.  Secondly, it is contended that the total sentence of 10 years failed adequately to distinguish between the overall criminality of the first and second applicants.  Thirdly, it is contended that the differential in the sentence passed on Fong in respect of the offence giving rise to Count 4 is such as to generate a legitimate sense of grievance.  Fourthly, it is contended that the total sentence of 10 years after pleas was wrong in principle and/or manifestly excessive.

The starting points

22.Mo Kwong Sang (above) remains the guideline case for armed robberies without firearms.  The normal sentence for armed robbery in which an accused is carrying a weapon and displays it to his victim is 5 years.

23.It was contended on behalf of the first applicant that the Judge erred in suggesting that the 5 year starting point could be increased by reason of the aggravating circumstance of the accused displaying or using a weapon in the course of the offence.  Strictly, and only insofar as the Judge seemed to suggest that display was itself an aggravating feature, this contention is valid since the 5 year guideline sentence contemplated in Mo Kwong Sang relates to a robbery “where the accused was carrying a knife or other dangerous weapon which he displayed to his victim”.  However, in three of the offences a weapon was used to inflict injury and that is an aggravating factor, and there were further serious aggravating factors which justified an increase in sentence from the basic starting point.

24.In respect of Count 1, the following aggravating factors are present.  The robbery was committed in a shop and so in private business premises.  The first applicant claimed to be a triad member and threatened PW1.  The first applicant used violence on PW1 by stabbing him.  When he left the shop, the first applicant threatened to return if there was any trouble.  For these aggravating factors, we think the Judge would have been fully entitled to uplift the starting point by a total of about 3 years.

25.Furthermore, the first applicant has a long criminal record for offences of a like nature, to which the Judge referred in her reasons for sentence.  He was 30 years old at the time of the offence and had 17 previous convictions, including convictions for theft, criminal damage, burglary, possession of an offensive weapon, being a triad member and three robberies.  For two of the robberies, he was sentenced to terms of imprisonment of 4 years 8 months and 5 years respectively.  The most recent previous conviction prior to this offence, for wounding, was committed in September 2009 for which he was sentenced to 6 months’ imprisonment.  Thus, he had only been released from prison less than a year prior to the offence.  In these circumstances, we consider that a further uplift of about one year to the starting point would be justified.

26.This would justify a starting point of about 9 years before discount for plea for Count 1 which is the same starting point that the Judge arrived at.  After the discount for plea, the sentence would be 6 years’ imprisonment, which is the sentence the Judge imposed.

27.It was submitted that a starting point of 9 years for Count 1 is too high by comparison with cases involving “head bashing” robberies.  It was contended that, since the Court of Appeal in HKSAR v Ma Ping Wah [2000] 2 HKLRD 312 suggested a starting point of not less than 8 years’ imprisonment for robberies involving a deliberate blow to the head with a weapon capable of causing injury to the brain, a starting point of 9 years for Count 1 was excessive given the much less life-threatening quality of the violence used as compared with “head bashing”.

28.We do not accept the submission.  The mere fact that a particular starting point for a particular category of robbery has been highlighted in a previous decision does not affect the applicability of the Mo Kwong Sang guidelines for armed robberies without firearms.  In any event, the level of violence utilised by the first applicant in the Count 1 offence is but one of the multiple factors supporting an overall starting point of 9 years before discount for plea.

29.As for Count 2, it would be appropriate to increase the normal 5 year starting point by reason of the aggravating feature of the robbery being committed in the private premises of a shop, the threat uttered by the first applicant in claiming to be a triad member, the duration of the first applicant’s presence in the shop of around 30 minutes, and the lengthy previous criminal record of the first applicant.

30.However, we do not think these aggravating factors should result in a sentence that equiparates Count 1 with Count 2.  Count 1 was plainly more serious because it involved an actual stabbing of PW1 and there was a threat to return on some future occasion.  We think that the Judge should have made some differential between the sentences for the two offences.  We consider that a starting point of 8 years before discount for plea for Count 2 to be more appropriate in the circumstances.  After the relevant discount, the sentence would be 5 years 4 months.

31.Turning to Count 3, this was a very serious robbery and there were a number of aggravating factors.  It took place in private business premises.  A group of robbers was involved.  There was considerable violence used in the course of the robbery and two defenceless victims, PW4 and PW5, both suffered serious injuries from the knife wielded by the leading player.  Those injuries speak to the level of violence used in the robbery.  The chopping force was sufficient to fracture bones, cut through nerves and tendons and caused deep wounds.  One of those landed on the scalp of PW5, a particularly vulnerable part of the body.  In addition, the robbers wore masks, a factor which no doubt significantly increased their victims’ sense of fear for their safety.

32.We do not think that the fact the injuries were inflicted by another participant in the robbery reduces the applicants’ culpability for what was plainly a joint enterprise.  The approach of this Court is to decline to apportion blame and adjust sentences to any marked degree when defendants are parties to a joint enterprise: see HKSAR v Lai Kam Tong & Anor [2005] 1 HKC 232 at 240F.

33.It was submitted that unobstructed entry to a hotel lobby or a shop, particularly on a ground floor, open for business, is not an invasion of private premises justifying an enhancement of sentence.  We reject this submission.  The Court in Mo Kwong Sang indicated that private premises for these purposes could include domestic and business premises and the common parts of premises such as lifts and staircases, the distinction being between private or non-public premises and public premises.  It does not seem to us that the mere fact that a hotel lobby or shop is open for business means that those premises are not private, nor that the entry by a robber for a purpose clearly other than the legitimate business being carried on in the hotel or shop is anything other than an invasion of such premises, even if on the ground floor.  In any event, on the facts of the present case the lobby of the hotel, where the offence in Count 3 was committed, was situated on the third floor of the building in which it was located and the shop, where the offence in Count 2 was committed, was situated on the B1 Floor of its building.

34.Serious indeed though this offence was and conscious though we are that an appellate court should refrain from “tinkering” with sentences, we are of the view that a 12 year starting point is difficult to justify (and the Judge did not articulate how she arrived at 12 years) and, further, that the differences in the criminal records of the two applicants warranted some difference in their sentence.  It is our view that the basic starting point of 5 years warranted an increase of 5 years but no more for the aggravating factors present and by a further one year for the first applicant’s lengthy criminal record.  This results in a total starting point for Count 3 before discount for plea of 11 years for the first applicant and of 10 years for the second applicant.  We do not think the previous record of the second applicant, to which the Judge also referred, requires a further enhancement.  His previous record is much less extensive than that of the first applicant and his only conviction for a crime involving violence was in 1998.

35.After the relevant discounts for the guilty pleas, the sentences would be 7 years 4 months for the first applicant and 6 years 8 months for the second applicant.

36.As for Count 4, there is, despite the fact that this was a joint enterprise but for reasons we will explain, a difference in the degrees of criminality of the two applicants.  The first applicant was plainly the primary instigator of this very serious wounding offence.  He appears to have started the assault on PW6 and was also responsible for escalating a fistfight into a stabbing incident.  The knife used was a large one and resulted in PW6 being admitted to hospital in critical condition.  The victim suffered potentially life-threatening puncture wounds to the chest.  The photographs of the victim show at least three stab wounds to the left side of the chest near the victim’s heart.  There were multiple stab wounds inflicted overall and the victim clearly has some residual disability.

37.In SJ v Hau Ping Chuen [2008] 4 HKLRD 673, the Court of Appeal held that the usual range of sentence for wounding with intent was 3 to 12 years’ imprisonment.  The maximum for this offence is life imprisonment and it follows that a sentencing judge has considerable flexibility.  Given the facts relating to the first applicant’s involvement in Count 4, we are not satisfied that the Judge has been shown to be wrong in principle in determining a starting point before discount for plea of 12 years’ imprisonment.  Nor do we think that sentence to be manifestly excessive.  The first applicant is demonstrably a violent man and this offence was the fourth offence in a spree lasting over several days.

38.In the normal course of events, a knowing participant at the outset of a violent enterprise will expect the same sentence as the direct perpetrator of the injury but in this particular case, the position of the second applicant is, as the Judge recognised, different.  There is no suggestion that he and Fong and the first applicant set out to attack PW6.  The first applicant started it all and the second applicant kicked PW6 only thereafter.  On the other hand, he has pleaded guilty to joint responsibility for the offence.  Furthermore, it is clear from the circumstances of the offence that the second applicant joined the assault after the first applicant had taken out his knife to escalate the fistfight into a much more serious assault. In all the circumstances, we do not accept that the Judge was wrong in principle in determining a starting point before discount for plea of 9 years.  Nor do we think this sentence to be manifestly excessive in the circumstances.

39.On behalf of the first applicant, it was submitted that a starting point of 12 years was grossly excessive when compared to other wounding cases.  However, R v Nguyen Thang Loi, unrep., CACC 335/1991, 20.2.92, is distinguishable on its facts and the sentence imposed in SJ v Hung Kar Chun, unrep., CAAR 9/2010, 6.10.10, was, in our respectful view, extremely lenient.

The differential of sentence in respect of Fong

40.It was contended on behalf of both applicants that the substantial differential between the sentences imposed by the Judge for Count 4 and those imposed by the District Court Judge on Fong for the same incident gave rise to a legitimate sense of grievance on the part of both applicants, particularly the second applicant.

41.The general principle, however, governing consideration of disparity of sentences is well-settled:

“… when different sentences passed on different accused for the same offences by different judges on different occasions …the only consideration must be whether the sentence passed on the appellant was appropriate” (R v So Hung Lee & Anor [1986] HKLR 1049 at 1052).

42.Mr Martin Hui, counsel for the respondent has explained the circumstances leading to Fong being dealt with separately to the first and second applicants in respect of the offence giving rise to Count 4.  Counsel informs us that the Judge was made aware of the sentence of 40 months’ imprisonment imposed on Fong by the District Court Judge.

43.We consider that the sentence passed on Fong was a light one, even taking into account the fact that he was sentenced in the District Court rather than the High Court.  Be that as it may, that is not a matter which should redound to the benefit of these applicants and does not provide a justification for interference by this Court in the sentences imposed on them for this offence.

44.It follows that we do not consider that the disparity between the sentences imposed on the applicants and that imposed on Fong is such as to support the sense of grievance present in cases such as HKSAR v Wong King Wai [2008] 2 HKC 614 at §§43-44 (applying the test in R v Fawcett (1983) 5 Cr App R (S) 158 at 161).

Totality

45.In principle, we consider that the judge was justified in imposing partially consecutive sentences in respect of Counts 3 and 4 for the first applicant.  Each of these latter two offences was a separate offence, notwithstanding that they occurred on the same day, and each of those offences added materially to the culpability of the first applicant in respect of the previous offences.

46.Notwithstanding the fact that we would substitute lower individual sentences for Counts 2 and 3, we are satisfied that the Judge’s decision to make 3 years of the sentence for Count 3 consecutive to the concurrent sentences for Counts 1 and 2 and 3 years of the sentence for Count 4 consecutive to that overall sentence, making a total overall sentence of 12 years’ imprisonment for the first applicant, was neither wrong in principle nor manifestly excessive.

47.However, we do consider that a greater differential should have been reflected in the overall sentence imposed on the second applicant and we do not regard the 2 year difference recognised by the Judge as sufficient in this regard.

48.First, the second applicant was only charged in relation to 2 offences rather than 4.  Secondly, although of a similar age to the first applicant, the second applicant’s criminal record is much less extensive.  He has four previous convictions and only one of those convictions is for a crime of violence, namely a wounding offence in 1998.  Thirdly, it is clear from the circumstances of the rest of the applicants that the second applicant did not resist arrest and was cooperative with the authorities.  Fourthly, it is clear that, of the two applicants, the first applicant’s criminal culpability was greater than that of the second applicant.

49.In all the circumstances, by reducing the individual sentence of the second applicant in respect of Count 3, the Judge’s order that 2 years of the sentence for Count 4 should be consecutive to the sentence for Count 3, which we affirm, will result in an overall sentence for the second applicant of 8 years and 8 months’ imprisonment and will reflect what we consider to be a more appropriate differential in the total sentences passed on the two applicants.

Disposition

50.For these reasons, we grant the first applicant leave to appeal against the individual sentences in respect of Counts 2 and 3, treat the hearing of the application as the appeal, and substitute a sentence of 5 years 4 months in respect of Count 2 and a sentence of 7 years 4 months in respect of Count 3.  The first applicant’s application for leave to appeal is otherwise dismissed.  The result remains, in his case, a total of 12 years’ imprisonment.

51.As regards the second applicant, we grant him leave to appeal against sentence, treat the hearing of the application as the appeal, and allow the appeal to the extent that we substitute a sentence of 6 years 8 months in respect of Count 3 and adopting the Judge’s order that 2 years of the sentence for Count 4 shall run consecutively to the term imposed in relation to the sentence for the Count 3 offence, the remainder to run concurrently, this will result in a total sentence in his case of 8 years 8 months’ imprisonment.

Hon Stock VP:

52.I wish to add a note of my own in relation to the case of SJ v Hung Kar Chun, CAAR 9 of 2010, 6 October 2010, unreported, to which Fok JA refers at paragraph 39 above and I do so because this is not the first time that decision has been prayed in aid of an appeal against sentence; and I trust that it will not be cited again in aid of an application in relation to sentence because it stands entirely apart from the run of sentences for offences of its gravity.

53.That case was a conviction after trial for an offence of wounding with intent to do grievous bodily harm at the end of which trial the District Court judge imposed a sentence of 9 months imprisonment and the Court of Appeal substituted upon review a sentence of 2½ years imprisonment.

54.It was a case in which the defendant was the boyfriend of a girl whose elder brother was the victim of the attack in question.  The victim had sought to persuade his sister not to go out with the defendant; and had warned the defendant not to disturb his sister again. However the defendant kept calling the girlfriend after which the victim asked the defendant to meet him at a shopping mall to negotiate a solution.  The defendant was aged 29 years at the material time and had no previous convictions.  Prior to the meeting in question, he purchased a knife about 20 cm in length and went, armed with that knife, to the shopping mall but before he did so he telephoned the victim telling him that he had bought a knife and that he intended to stab him to death unless he, the victim, left.  When he saw the victim with his, the defendant’s, girlfriend the defendant took out the knife and told the victim to leave or else he would stab him to death – all this on the defendant’s own evidence.  The defendant stabbed the victim in the area of his waist causing a deep laceration of 2 to 3 cm in length and 5 cm in depth and caused a laceration to his spleen and considerable bleeding into the abdominal cavity.  After several failed attempts to staunch the bleeding, the victim underwent an operation in which his entire spleen was removed.

55.The Court of Appeal said in terms that this was not an un-premeditated case – “his acts were planned and malicious”.

56.The case is not one which should be cited again in support of sentencing for wounding with intent cases.  No doubt the Court of Appeal took a particularly generous view of matters because it was a review of sentence from what can only be described as a ludicrously low penalty imposed in the court below.  It is to be remembered that the maximum term for wounding with intent to do grievous bodily harm is life imprisonment; that the case in question was a sentence after a contested hearing, leaving – if a 2 and a half year sentence were considered appropriate for such a serious and premeditated attack – very little room for any sentence at all upon a plea; let alone for any sentence had the charge being one of wounding alone.

Mr James H M McGowan, instructed by David Hui & Co., assigned by Director of Legal Aid, for the Applicants

Mr Martin Hui SADPP, of the Department of Justice, for the Respondent