HKSAR v. Gu Guolin

CACC 2 5/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 25 OF 2012

(ON APPEAL FROM HCCC NO 163 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Chu JA (giving the Reasons for Judgment of the Court):

1.This is an application for leave to appeal against sentence out of time. After hearing the applicant, we dismissed the application and said we would give our reasons in writing, which we now do.

2.On 6 January 2012, the applicant was convicted after trial in the Court of First Instance before McWalters J (“the Judge”) and a jury of one count of burglary (“1^st count”), contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210, and one count of robbery (“2^nd count”), contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210.  On 10 January 2012, the applicant was sentenced to 3 years and 3 months’ imprisonment for the 1^st count and 8 years and 6 months’ imprisonment for the 2^nd count, 7 years of which to run consecutively, making a total sentence of 10 years and 3 months.

3.On 18 January 2012, the applicant filed a notice of application to appeal against his conviction.  He subsequently abandoned the application.

4.On 17 September 2013, the applicant filed the present application to seek leave to appeal against sentence out of time.  The application was out of time by 20 months.

5.At the trial, most of the facts were admitted by the applicant.  The admitted facts show that the burglary took place on 14 April 2004 at about 2:45 am at a residential house in Sheung Shui.  The occupants heard an intruder and gave shouts.  A window on the first floor was opened and part of the first floor had been ransacked.  The applicant’s fingerprints were found on the inside of two of the windows on the second floor and on the bottom of a plastic box that had contained coins.  On 16 April 2004, police located the stolen property particularised in the 1^st count in a public place some short distance from the burgled house. 

6.The 2^nd count, of robbery, took place on 17 July 2010 at about 3:00 am at a house in Sai Kung, which was attended by a Filipino domestic maid and her husband.  The applicant together with three other robbers, each wearing hood and gloves, rushed into the room in which the couple was sleeping.  The male victim was punched on his head and torso and a cut was caused to his left upper arm by a sharp knife.  He was tied up, blindfolded and gagged.  The female victim was also punched and threatened with a knife. She was tied up and gagged.  The robbers ransacked the house for about 30 to 45 minutes.  They also cut the telephone line in the house.  The victims untied themselves after the robbers left.  The applicant was arrested at about 3:40 pm on the same day when he was departing Hong Kong at the Lo Wu Boundary Control Point.  Police found from his rucksack an Octopus card which was stolen from the maid and a black T-shirt.  Scientific forensic examination conducted by the government chemist found that the cotton fibres from the applicant’s black T-shirt matched the fibres on the adhesive tapes found at the robbery scene. Police also arrested the other robbers and recovered from them the other stolen property.

7.The applicant was aged 35 at the time of sentencing.  He is a visitor from the Mainland.  In passing sentence on the 1^st count, the Judge noted that the usual sentence would be 3 years, but a higher starting point was called for because it took place in the early hours of the morning and the premises were occupied.  He adopted 3½ years as the starting point and reduced it by 3 months to reflect the fact that the applicant had been cooperative in agreeing to the facts of the burglary. 

8.As to the 2^nd count, the Judge considered the robbery was a particularly unpleasant one and pointed to the following aggravating factors, namely,

“(1) the robbery was clearly premeditated and well planned;

(2) it involved the participation of four or more persons;

(3) the robbers participating in it were visitors to Hong Kong;

(4) the robbery involved the invasion of private premises;

(5) it took place in the early hours of the morning;

(6) the robbers were armed with knives which they used to threaten and intimidate the victims; and

(7) the robbers used actual violence against the victims by binding and gagging them, blindfolding one of them and punching them and cutting one of them with a knife.”           

9.The Judge further took the view that the court must send a very strong message that people visiting Hong Kong for the purpose of committing criminal offences and causing harm to the residents will be met with a very severe sentence.  Following the decision of HKSAR v. Mo Kwong Sang [1981] HKLR 610, the Judge considered a starting point in excess of 7 years was called for, taking into account the aggravating factors, and adopted 9 years’ imprisonment as the starting point.  To reflect that the applicant had agreed most of the facts of the robbery, the Judge gave a discount of 6 months and imposed a sentence of 8 years 6 months.  Having regard to the principle of totality of sentence, the Judge ordered 7 years of the sentence to run consecutive to the sentence of the 1^st count, making a total of 10 years 3 months.

10.In his affirmation in support of the present application, the applicant stated that the application for leave to appeal was made out of time because, as a mainlander, he has no friends in Hong Kong and that he did not know how to file an appeal or formulate the grounds of the appeal and he could not find the relevant case law.

11.In his undated letter to the court, the applicant put forward the following grounds for his appeal:

(1)    The starting point for the burglary offence is too high. The fact that the offence was committed in the early hours of the morning and that the premises were occupied should not be regarded as aggravating factors.

(2)    The starting point for the robbery offence is too high.  The Judge should not have regarded the fact the offence was committed by four robbers and at night time and that the applicant was a visitor to Hong Kong as aggravating factors.

(3)    The injuries suffered by the victim were not serious.

(4)    Contrary to what the Judge said, the victims were not blindfolded. 

(5)    All the stolen properties had been recovered.

(6)    The Judge did not have regard to the fact that he was a first offender.

(7)    The sentences that he received were more severe when compared to other cases, the facts of which were more serious.

12.The applicant asked for the sentences to be made concurrent or be reduced so that he could return to the Mainland to look after his wife who has liver illness and also his young child.

13.The applicant’s application is 20 months out of time.  This is a substantial delay.  As stated by the Court of Appeal in HKSAR v. Medina & Another (unreported) CACC 296/2007, 31 January 2012, at para.12:

“In considering whether leave should be given to appeal out of time, we look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the application for extension of time. We would also look at the ground of the proposed appeal to see whether, by refusing leave to appeal, we were not shutting out a substantial and plainly arguable ground of appeal. Substantial grounds must be shown for the delay before we would grant indulgence, and the longer the delay, the more onerous is the duty of the applicant.”

14.The applicant has given no satisfactory explanation for his delay.  His claim that he did not know how to deal with the appeal against sentence has no substance since he had managed to file a notice of appeal against conviction within the time limit. 

15.Turning to the grounds of the proposed appeal, the Judge was correct in holding that the burglary was aggravated by having been committed in the early hours of the morning at a time when the house was occupied: see HKSAR v. Tong Fuk Sing [1999] 3 HKC 332, 335I-336B.

16.The Judge was also correct in regarding the robbery to have been aggravated by having been committed by four robbers at night time and in taking the view that a severe sentence should be imposed as so to deter people from contemplating to come to Hong Kong to commit offences.

17.Although the victims had not sustained serious injuries, they had been punched, threatened with a knife, tied up and gagged. In the case of the male victim, he was also blindfolded.  This fact was stated in paragraph 4 of the Admitted Facts dated 28 December 2011, and the Judge was not mistaken when he said one of the victims was blindfolded.  The incident was clearly a terrifying ordeal for the victims.  It was also fortunate that they did not suffer serious injuries.

18.The fact that the stolen property was recovered from the applicant and his co-defendants upon their arrests does not amount to a mitigating factor.  Nor did the Judge err in not reducing the sentences further on the basis that the applicant was a first offender.  Although the applicant did not have a criminal record at the time he was being sentenced, he could not be regarded as a first offender in respect of the robbery offence, having previously committed the offence of burglary.

19.In allowing part of the sentences to run concurrently and ordering 7 years of the sentence imposed in respect of the offence of robbery to run consecutively to the sentence on burglary, the Judge had properly taken into account the principle of totality.  The total sentence of 10 years 3 months is in our view not wrong or excessive.

20.The applicant in his submissions referred to three other cases (HCCC 74/2013, HCCC 117/2014 and DCCC 141/2013) and argued that despite the cases were more serious, the defendants had received lighter sentences.  We would firstly point out that these cases were first instance decisions and have no bearing on whether the sentences passed on the applicant is correct.  Further, it is well established that a disparity in sentences imposed on different defendants by different judges on different occasions for the same offence is not, in itself, a ground for the appellate court to interfere, if the sentence is otherwise appropriate having regard to the nature of the offence and to the offender himself: see HKSAR v. Cheng Sau Yuk [2012] 5 HKLRD 415 at para.22.  The important consideration is whether the sentences passed on the applicant are proper. For the reasons given above, we are of the view that the sentences imposed by the Judge are proper. 

21.The application for leave to appeal is out of time.  The proposed appeal has no merits.  In the circumstances, the application for leave to appeal against sentence out of time must be dismissed.  And we so ordered.

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

The applicant, unrepresented, appeared in person