HKSAR v. Lam Hing

[English Translation — 英譯本]

CACC 415/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO 415 OF 2013

(ON APPEAL FROM HCCC 138/2012)

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REASONS FOR JUDGMENT

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Hon Chu JA (giving the reasons for judgment of the Court):

1.The applicant seeks leave to appeal against sentence out of time.  Following a hearing, we granted leave to the applicant and treated the application as the appeal proper.  We allowed the appeal and reduced his total sentence to one of 5 years’ imprisonment.  We now give reasons for our decision.

2.On 25 June 2012, the applicant pleaded guilty before Tong J in the Court of First Instance to three counts of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210.  For each charge, he was sentenced to 4 years’ imprisonment by the judge, who ordered that 1 year of the sentence for Charge 2 to run consecutively to the sentence for Charge 1, and 1 year of the sentence for Charge 3 to run consecutively to the sentences for Charges 1 and 2, making a total of 6 years’ imprisonment.

3.According to the facts admitted by the applicant, on three separate occasions in May, June and July of 2011, armed with a knife, he robbed inside a lift three ladies, each of whom had just withdrawn some money from a bank.

4.The applicant was aged 67 when he was sentenced.  He had 60 previous criminal conviction records, 36 of which were of the offences of robbery or attempted robbery. Having taken into account the relevant authorities, the judge adopted a starting point of 6 years’ imprisonment for each charge and, giving a one-third discount for the applicant’s guilty plea, sentenced him to 4 years’ imprisonment for each charge.  At the same time, taking into consideration the totality principle, the judge ordered that 1 year of the sentences imposed for Charges 2 and 3 to run consecutively to the sentence imposed for the other charge, making a total of 6 years’ imprisonment. 

5.After the expiry of the time limit for lodging an appeal, the applicant made this application on 28 November 2013, seeking leave to appeal against sentence out of time.

6.The applicant made this application on the ground that after being sentenced he had provided to the police information about his accomplice who was involved in the present case, that is, the three robberies.  As a result, the police succeeded in arresting his accomplice.  Subsequently, during the trial of the accomplice, the applicant acted as a prosecution witness, and his evidence has led to the successful prosecution of the accomplice.

7.The respondent did not take issue with these matters the applicant has raised nor did they have any objection to his application for appeal out of time.

8.The applicant’s only ground of appeal is that he should have been given a further reduction of sentence because of the aforesaid assistance that he had rendered to the police.

9.In Z v HKSAR (2007) 10 HKCFAR183, the Court of Final Appeal has stated (at paragraph 13) that in deciding whether the assistance given by a defendant to the police merits a discount in his sentence, the most important factors usually include the nature and extent of the assistance and the likely consequences of the defendant giving assistance.  The Court of Final Appeal also observed (at paragraph 23) that as far as the extent of reductions of sentence was concerned, a usual discount of 40% would be given to those defendants who had provided assistance without testifying in court.  For those who had not only given information but had proceeded to give truthful and material evidence, the usual discount would be 50%.  Where the level of assistance was such   as to place the defendant in the ‘supergrass’ category, a discount of up to two-thirds could be given. The above reductions of sentence already included the one-third discount on account of a plea of guilty.

10.Mr Fan, counsel for the applicant, submitted that the applicant fell into the second category, and hence could be given a 50% reduction of sentence.  No issue was taken as to the starting point of 6 years’ imprisonment that Tong J adopted for each charge and the judge’s decision to order that 1 year of the sentences for Charges 2 and 3 to run consecutively to the sentence for the other charge.  Mr Fan’s contention is that the sentence for each charge should have been one of 3 years’ imprisonment with 1 year of the sentences for Charges 2 and 3 to run consecutively to the sentence for Charge 1, making a total of 5 years’ imprisonment. 

11.Mr Lee, for the respondent, on the other hand, pointed out that under section 83I of the Criminal Procedure Ordinance, Cap. 221, the Court of Appeal may “quash any sentence which is the subject of the appeal”, and “in place of it pass such sentence as it thinks appropriate for the case … (whether more or less severe)”. He submitted that the facts to which the applicant had admitted before Tong J did not disclose that there had been an accomplice at the bank responsible for observing customers making cash withdrawals to look for a suitable target, and informing the applicant who then robbed the victim inside the lift.  According to Mo Kwong Sang v The Queen [1981] HKLR 610, the presence of more than one person in the group of robbers is an aggravating factor for sentence in a robbery case.  Further, Mr Lee contended that Tong J did not raise the starting point despite the fact that the Applicant was a repeated offender and hence he took the view that a total sentence of 6 years’ imprisonment was already lenient.  As regards Mr Fan’s submission that the applicant could be given a 50% reduction of sentence on the ground that on top of providing information he had testified in court, which led to the conviction of his accomplice, Mr Lee did not take any issue with it as a matter of legal principle. 

12.In our view, the starting point of 6 years’ imprisonment is appropriate in the circumstances of the present case.  Firstly, in the facts admitted by the applicant, it was not mentioned and was not yet the evidence that the applicant had committed the three robberies together with an accomplice who had been at the banks responsible for looking for potential targets to rob.  In considering this application, we can only base our decision on the evidence in the present case; and we cannot take into consideration evidence disclosed in other cases.  Secondly, as suggested in Mo Kwong Sang v The Queen, the presence of more than one person in the group of robbers is an aggravating factor for sentence.  By that, the court was referring to a situation where more than one robber took part in the course of the robbery.  However, in the present case, when the three robberies took place, only the applicant was present.  Thirdly, in sentencing the Applicant, Tong J was aware of the applicant’s criminal record.  It was after taking into consideration the facts of the case and the circumstances of the applicant that he adopted a starting point of 6 years’ imprisonment, which is higher than the usual starting point of 5 years adopted in a common case of robbery.

13.In view of the applicant’s guilty plea, his assistance in providing information to the police and testimony given in court, which led to the conviction of his accomplice, he may have a 50% reduction of sentence.  In the result, the sentence for the three charges should be one of 3 years’ imprisonment.  As no issue is taken with Judge Tong’s decision to order that parts of the sentences are to run consecutively to one another, we order that 1 year of the sentences for Charges 2 and 3 to run consecutively to the sentence of 3 years’ imprisonment for Charge 1, making a total of 5 years’ imprisonment.

14.For the above reasons, we granted leave to the applicant to appeal out of time and treated the application for leave to appeal as the appeal proper.  We allow the appeal and reduce the sentence for each charge to 3 years’ imprisonment.  We also order that 1 year of the sentences for Charges 2 and 3 to run consecutively to the sentence for Charge 1, making a total of 5 years’ imprisonment.

Edward Fan, instructed by the Legal Aid Department, for the applicant

Edmond Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P. Y. Lo, Barrister-at-law