HKSAR v. Kwok Kin Ming

CACC 115/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 115 OF 2012

(ON APPEAL FROM HCCC NOS. 153 and 286 OF 2011)

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BETWEEN

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J U D G M E N T

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

1.The applicant seeks leave to appeal against sentence out of time. He was convicted after a joint trial with two other defendants, the 1^st and 2^nd defendants at trial, by Beeson J and a jury on 9 February 2012 of two offences, namely a robbery on 27 September 2010 (Count 1) and conspiracy to commit robbery on or about 21 to 25 November 2010 (Count 2). The judge sentenced the applicant on 29 February 2012. On 25 January 2013, the applicant’s application for leave to appeal against conviction was dismissed by this Court, differently constituted. That application had been filed on 16 March 2012.

2.On 13 January 2014, the applicant filed an application for leave to appeal out of time against sentence by way of Form XI of the Criminal Appeal Rules.  That application is about 22 months out of time.  In an affirmation attached to Form XI, the applicant explained the basis of his application as being, in effect, a plea in misericordiam, arising from the fact that he is suffering from an incurable and deteriorating eye disorder. 

3.Count 1 alleged that on 27 September 2010, the applicant together with the 2^nd defendant robbed Wong Ka Chun of 5 mobile telephones, 7 SIM cards, $7,725, a wallet containing identification and banking cards, together with other personal items.  Count 2 alleged that between about 21 and 25 November 2010 the applicant and his two co-accused conspired together to commit robbery.

4.On 29 February 2012, the judge sentenced the applicant in respect of each count to 6 years’ imprisonment.  She ordered 2 years of the sentence of Count 2 to run consecutively to that of Count 1.  Accordingly, she sentenced the applicant to a total term of imprisonment of 8 years. 

THE FACTS

Count 1

5.On the evening of 27 September 2010, an employee of PCCW, Mr Wong Ka Chun made delivery of mobile telephones to an address in Sham Shui Po, in which building the applicant resided.  On arrival at the entrance to the building Mr Wong made contact by telephone with the apparent customer.  Having been met by the 2^nd defendant and taken by a lift to the entrance to a flat in the building, Mr Wong was grabbed from behind in an arm-lock by the applicant.  He felt something like a knife pressed against his neck and, as instructed, squatted down facing a wall.  There, he was robbed of the property particularised in Count 1.

Count 2

6.As a result of the robbery the subject of Count 1, the police mounted an undercover operation.  On 25 November 2010, an undercover police officer, posing as an employee of PCCW made delivery of mobile telephones to an address at which he met the 1^st defendant, who took him by lift to an upper floor.  There, the applicant was arrested as he loitered nearby in the fire escape staircase.  He was found to be in possession of a table knife.  The applicant made admissions to the police of his part in both the robbery and conspiracy to rob.

REASONS FOR SENTENCE

7.In sentencing the applicant, the judge observed that he had a “very poor criminal record”, noting that in 2002 he had been sentenced in respect of three offences of robbery and an offence of wounding with intent to do grievous bodily harm.  The total sentence imposed on the applicant on that occasion was 10 years’ imprisonment.

8.Of the applicant’s role in the instant offences, the judge said that he:[1]

“ .. was as organizer and initiator, and his role was made worse because he directed his attention to younger companions who at that time had managed to avoid criminal convictions. He therefore appears quite plainly as a corrupter of D1 and D2.”

9.Although the judge said that she accepted that the robberies were not the most serious, nevertheless she said that the placing of the object, be it a knife or a key, at Mr Wong’s throat must have been “a terrifying experience”.[2]

10.In the result, the judge sentenced the applicant to 6 years’ imprisonment on each of the counts, ordering that 2 years’ imprisonment of the sentence of imprisonment imposed in respect of Count 2 was to be served consecutively to the sentence of imprisonment imposed in respect of Count 1.  Accordingly, the total sentence of imprisonment imposed on the applicant was 8 years.

Grounds of appeal against sentence out of time

11.In letters dated 14 May and 27 June 2014, the applicant reasserted the claim made in Form XI that he is suffering from an incurable eye disorder.  In the letters he asserted that the inevitable consequence of the disease is that “he is waiting to go blind”.  It appears that the applicant advances that condition as an explanation for his delay in giving notice of his application for leave to appeal against sentence.  In the letter of 14 May 2014, the applicant said that whilst he was detained in custody he had been treated by the Department of Ophthalmology of Queen Mary Hospital.  In particular, he said that, after a consultation on 4 September 2013, he was provided with a letter to give to doctors caring for him at Stanley Prison Clinic.  Attached to his letter is an undated letter, which refers to the applicant by name but which has been redacted to obscure the name and signature of the Resident at the Department of Ophthalmology at Queen Mary Hospital.  The letter states:

“ The captioned patient has pathological myopia with left macula scar. He has minimal early cataracts in both eyes. His main cause of poor vision in right eye is dry myopic maculopathy/left eye is macula scar.

I have advised him that dry myopic maculopathy is a degenerative condition due to pathological myopia and currently cannot be treated. Cataract surgery is not advised for his right eye as the cataract is minimal.

I would like to suggest that he has regular follow-up at Stanley Prison Clinic by our eye team, with next visit in about 2-3 months for trial lens as well.”

12.In his oral submissions, the applicant claimed that the letter had been redacted by the Correctional Services Department.  He had been told that was done to protect the rights of privacy of the doctor.  The applicant confirmed his written submissions that he took no issue with the original sentence imposed upon him.  His application was for mercy only.  In an exchange with the court the applicant confirmed that he was aware that the Chief Executive had the power to grant clemency in respect of the sentence of imprisonment imposed on a prisoner.  However, he said that he understood that in practice that power was exercised only in the terminal stages of illness.  It was in those circumstances that he made his application to the court.

13.Mr Andrew Li, for the respondent, provided the court with a medical report on the applicant made by a doctor at Stanley Prison Clinic dated 2 July 2014.  However, as he indicated in providing the report, its use was limited in that, although it confirmed that the applicant was receiving ongoing treatment, it did not provide any prognosis.

A consideration of the submissions

14.The judge’s description of the applicant’s criminal record as being “very poor” was entirely apposite.  Having been convicted on various occasions for offences of dishonesty, in 1998 the applicant was sentenced in the Court of First Instance to a total of 5 years’ imprisonment for two offences of robbery.  In 2001, he was sentenced to 4 months’ imprisonment for offences of possession of an offensive weapon in a public place and going equipped to steal.  Then, in 2002 he was sentenced in the Court of First Instance to a total of 10 years’ imprisonment for three offences of robbery and one of wounding with intent to do grievous bodily harm. The sentences of imprisonment imposed in respect of the robbery offences were 6 years, 7 years and 8 years respectively.  The applicant was sentenced to 6 years’ imprisonment for the wounding with intent offence, 2 years of which sentence was ordered to be served consecutively to the sentence of 8 years’ imprisonment.

15.Given the circumstances of the commission of these offences, and having regard to the number of serious offences of which the applicant had been convicted and sentenced prior to the instant offences, together with the fact that the applicant was found in possession of a knife at the time of his arrest in respect of Count 2, the sentences imposed on the applicant are most certainly not manifestly excessive.

16.The material that the applicant has placed before the court to substantiate his contention that he is “going blind” does not support that submission in terms.  There is no doubt that he suffers from an eye disorder and that, as to one aspect of that disorder, there is no treatment.  It is to be noted that the letter from the Ophthalmology Department of Queen Mary Hospital states, “his dry myopic maculopathy is a degenerative condition due to pathological myopia and currently cannot be treated”.  Neither the consequences of that condition or the timeframe of the degenerative condition are described in the letter.  In any event, as is readily apparent the applicant has been and is receiving such treatment as is available for his condition.

17.In the determination of the Appeal Committee of the Court of Final Appeal in Yip Kai Foon v HKSAR [3], Li CJ addressed the approach of the courts in sentencing a defendant to the fact of his ill-health:

“ Under the guidelines and principles involved by the court, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity……..See also R v Ho Mei Lin [1996] 4 HKC 491 at p. 493 B where Nazareth VP in a drugs trafficking case observed that “it is well established that ill-health is not normally a reason for reducing a proper sentence.” ”

18.As Li CJ noted earlier in that passage, Article 48(12) of the Basic Law provides that the Chief Executive has “the power and function to commute the penalties of prisoners convicted of criminal offences”.[4]  Whilst the court has sympathy for the applicant for his medical condition the consequences of the applicant’s ill-health, such as they might be, are not a matter for this Court.  Rather, if relevant, they are a matter for executive clemency.

Conclusion

19.The applicant has advanced no good reasons for making his application out of time.  We are satisfied that that there are no merits in the application.  Accordingly, the application for leave to appeal against sentence out of time is dismissed.

Mr Andrew Li, SPP, of the Department of Justice, for the respondent

Applicant appeared in person

[1] Appeal Bundle, page 393 A-C.

[2] Appeal Bundle, page 393 K.

[3] Yip Kai Foon v HKSAR (2003) HKCFAR 31, at page 35 F-G.

[4] Yip Kai Foon v HKSAR, page 35 F.