Case Detail

CACC 386/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 386 OF 2004

(ON APPEAL FROM DCCC NO. 757 of 2004)

_______________________

BETWEEN

	HKSAR	Respondent
	and
	Wong Wai	Applicant
	(王偉)

______________________

Before: Hon Yeung & Yuen JJA in Court

Date of Hearing: 29 November 2005

Date of Judgment: 29 November 2005

Date Handing Down Reasons for Judgment: 5 December 2005

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Reasons for Judgment

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

1. On 29 November 2005, we granted leave to the applicant– Wong Wai to appeal against sentence. Treating his application as the appeal proper, we allowed his appeal and reduced his total sentence from 61 months to 49 months’ imprisonment. We indicated that we would hand down our reasons in writing and this we now do.

Background

2. The applicant and On Ling entered Hong Kong illegally from the Mainland on 9 June 2004. The following evening, shortly after 8 o’clock, they came across Mr Chan Lin-fai who was approaching a bus stop in Tai Po to wait for a bus.

3. On Ling pointed a roll of newspaper at Mr Chan’s stomach and declared robbery. Mr Chan got frightened and fell onto the ground, dropping his bag containing some personal properties and a small amount of cash, which the applicant took before fleeing with On Ling.

4. The police apprehended both the applicant and On Ling shortly afterwards. There was in fact no weapon in the roll of newspaper used to threaten Mr Chan.

5. However, the police found a flick knife, 18 cm in length on the applicant’s person.

6. The applicant and On Ling were jointly charged with robbery and each also faced a separate charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

7. For the flick knife found on his person, the applicant was additionally charged with the offence of possession of an offensive weapon in a public place.

8. The applicant and On Ling pleaded guilty to all the charges before the late Judge Day in the District Court.

9. On Ling was sentenced to 40 months and 15 months’ imprisonment respectively for the charges of robbery and unlawfully remaining in Hong Kong to run consecutively.

10. The applicant received identical sentences of 55 months’ imprisonment for the robbery and unlawfully remaining in Hong Kong charges. He was further sentenced to 8 months’ imprisonment for possessing the offensive weapon with 6 months to run consecutively. The total sentence on the applicant is 61 months’ imprisonment.

11. On 4 January 2005, On Ling’s sentence on the robbery charge was reduced on appeal to 32 months’ imprisonment.

12. The Court of Appeal took the view that the 5-year starting point adopted by the judge was manifestly excessive and emphasized that “the roll of newspaper was not a weapon and did not conceal one. The victim was never at risk of any physical harm form its use. In our view, if the same sentence is given whether a knife is displayed or where a roll of newspapers is displayed albeit as a dummy weapon, there would be little disincentive to the actual use of a knife.” ( HKSAR v On Ling CACC 386 of 2004 at paragraph 9 of the judgment)

The Application

13. On 18 July 2005, the applicant sought leave to appeal against the sentence of 61 months’ imprisonment out of time, clearly because of the decision in HKSAR v On Ling (supra).

14. Mr Andy Hung, who was also counsel for the appellant in On Ling, urged us to adopt similar approach. He further argued that the 12 months’ starting point for possession of the offensive weapon and, thus the 8 months’ imprisonment after a guilty plea was also excessive. He suggested that a more suitable starting point was 6 months.

15. Mr Hung also complained about the totality of sentence.

16. Mr Paul Ho, on behalf of the respondent, conceded, in the light of the Court of Appeal decision in HKSAR v On Ling (supra), that the sentence on the robbery charge should be reduced to 32 months’ imprisonment.

17. Mr Ho, however, argued that the 8 months’ imprisonment after a guilty plea on the offensive weapon charge was not excessive. He emphasized that the maximum term for the offence is 3 years’ imprisonment.

18. Both counsel referred us, in their written submissions, to other cases on sentence for possession of offensive weapon. We did not find it necessary to refer to those cases. Each case must be considered on its own facts.

19. The flick knife found on the applicant’s person was a small one. There was no suggestion that he had ever used it for any unlawful purpose. The applicant does not have any previous conviction.

20. In the circumstances and bearing in mind the totality principle, we were persuaded that the additional sentence of 6 months’ imprisonment on the offensive weapon charge was also excessive.

21. For the same reasons given in HKSAR v On Ling, we reduced the sentence on the robbery charge to 32 months’ imprisonment. We did not disturb the consecutive sentence of 15 months’ imprisonment on the unlawfully remaining in Hong Kong charge.

22. However, of the 8 months’ imprisonment on the offensive weapon charge, we ordered only 2 months to run consecutively.

Conclusion

23. We granted leave to the applicant to appeal against sentence out of time and treating the application as the appeal proper, we allowed the appeal.

24. The sentence on the robbery charge was reduced from 40 months to 32 months’ imprisonment to run consecutively to the 15 months on the charge of remaining in Hong Kong without authority.

25. We also ordered that of the 8 months’ sentence on the possession of offence weapon charge, only 2 months would run consecutively to the other sentences. The total sentence was therefore reduced from 61 months to 49 months’ imprisonment.

(W Yeung)
Justice of Appeal

(Maria Yuen)
Justice of Appeal

Mr Paul Ho SGC of the Department of Justice for the Respondent.

Mr Andy Hung assigned by the Director of Legal Aid for the Applicant.

CACC386 /2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL 386 OF 2004

(ON APPEAL FROM DCCC No.757 OF 2004)

______________________

BETWEEN:

	HKSAR	Respondent
	and
	ON LING (安寧)	Appellant

Before: Hon. Yuen JA and Lugar-Mawson J in Court

Date of hearing and judgment: 21 December 2004

Date of Reasons for Judgment: 4 January 2005

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REASONS FOR JUDGMENT

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Hon. Yuen JA (giving the reasons for judgment of the court):

1. This was an application for leave to appeal against sentence. At the conclusion of the hearing, we gave leave to appeal and treated the hearing of the application as the hearing of the appeal proper. We allowed the appeal, quashed the sentence imposed by the trial judge and exercising our powers under s.83I (3)(b) of the Criminal Procedure Ordinance Cap. 221, imposed a sentence of 32 months on the Appellant for the offence of robbery. We indicated that we would reduce the reasons for our decision into writing and hand down the reasons in due course. We do so now.

2. On 23 August 2004, the Appellant pleaded guilty before HH Judge Day to one charge of robbery and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was sentenced to a term of imprisonment of 40 months for the 1^st offence and a term of imprisonment of 15 months for the other offence, to be served consecutively.

3. Although the original grounds of appeal indicated that the Appellant was seeking to appeal the sentences for both offences, counsel for the Appellant has confined the appeal to the sentence on the robbery charge only.

4. The facts of the case were, briefly, that the Appellant had entered Hong Kong illegally on 9 June 2004. The following evening, he and the co-defendant were at a bus stop in Tai Po. When a person ("the victim") approached the bus stop intending to wait for the bus, the Appellant pointed a roll of newspapers at the victim’s stomach and declared his intention to rob. The victim (a 45 year-old man) fell to the ground out of fright dropping his bag, the co-defendant took the bag and the Appellant then fled. They were caught by the police soon afterwards. There were no weapons in the roll of newspapers.

5. The Appellant pleaded guilty. In his Reasons for Sentence, the judge accepted that no weapons were in fact used but adopted the starting point of 5 years applicable to robberies where weapons were in fact produced, because the Appellant pretended he had one and made the victim think that he did. The judge also regarded as aggravating factors the fact that the robbery took place on the day immediately after the Appellant had entered Hong Kong and that there were two robbers involved. He also took into account the fact that the victim had been so frightened he collapsed onto the ground. However the judge put into the balance against the aggravating factors the fact that no knife had actually been used and concluded that he should adopt a starting point of 5 years which, after the usual discount for a plea of guilty, was reduced to 40 months.

6. In referring to the starting point of 5 years for robbery involving the display of a weapon (excluding firearms), the judge was obviously referring to the sentencing guidelines for robbery set out by this court in Mo Kwong-sang v R [1981] HKLR 610 and affirmed more recently in Secretary for Justice v Ma Ping-wah [2000] 2 HKLRD 312.

7. Counsel for the Appellant submitted that this was not appropriate, as this court has said that the starting point for an unarmed robbery should be lower than that for an armed robbery of the kind envisaged in Mo Kwong-sang (HKSAR v Ting Chiu [2003] 3 HKLRD 378). This court had in R v Yau Kwok-tung [1987] HKLR 782 held that a sentence of 4 years was at the top end of the tariff for a robbery where weapons were not displayed, but which occurred at night and where the victims were frightened.

8. The issue is whether this case should be regarded as a robbery where a weapon was displayed, although it turned out to be no more than a prop.

9. It is of course true that the victim had been frightened by the prop, but the fact remains that the roll of newspapers was not a weapon and did not conceal one. The victim was never at risk of any physical harm from its use. In our view, if the same sentence is given whether a knife is displayed or where a roll of newspapers is displayed albeit as a dummy weapon, there would be little disincentive to the actual use of a knife.

10. Counsel for the Respondent referred us to R v Bentham [2004] 1 Cr App R 37 487 where during the course of a robbery, the defendant had his hand in his pocket and pointed his fingers so as to create the impression that he had a gun. The English Court of Appeal held that the fingers were capable of being an “imitation firearm” within the meaning of the Firearms Act. The court adopted a purposive approach to the interpretation of the Act which sought to afford protection to the public who were put in fear by what they reasonably believed to be a firearm or imitation firearm.

11. However that case was concerned with what was capable in law of being an “imitation firearm” for the purposes of the Firearms Act. That is different from the present case which was concerned with whether the Appellant should have been sentenced on the basis that he had displayed a weapon.

12. Further, counsel for the Respondent fairly conceded that the facts of this appeal were different from cases where imitation firearms were displayed in the course of robberies of banks or jewellery stores. This robbery took place at a quiet bus stop at night in Tai Po. It was a very different scenario from those contemplated in cases like R v Yu Tai Wing [1995] 1 HKC 837 where this court has held as a matter of policy that no distinction in sentence should be drawn between cases where genuine firearms are displayed (but not discharged) and cases where only imitation firearms are displayed. Macdougall VP held:

"Obviously the risk that a loaded genuine firearm carried by a robber might be discharged in the course of such robbery does not exist where the robber is armed with an imitation firearm. But the chance that the police or security guards who are called to or happen upon the scene might open fire in the course of such robberies cannot be overlooked. The risk of innocent bystanders being killed or injured is always present in circumstances where decisions have to be made in split seconds".

13. That rationale does not apply in the present appeal. In our view, this case should not be regarded as an armed robbery and the guidelines in Mo Kwong-sang are not appropriate. Given the other aggravating factors that the judge had referred to, this case should be regarded as one at the top of the tariff for unarmed robberies where victims are frightened and for which a starting point of 4 years is appropriate. This would translate into a sentence of 32 months after taking the plea into account.

14. Accordingly, we allowed the appeal, quashed the sentence imposed by the judge and imposed a sentence of 32 months on the Appellant for the offence of robbery. His total sentence is therefore now 47 months.

(MARIA YUEN)	(G.J. LUGAR-MAWSON)
Justice of Appeal	Judge of the Court of First Instance

Mr Andy Hung instructed by the Director of Legal Aid for the Appellant

Miss Louisa Lai, Senior Assistant Director of Public Prosecutions, for the Respondent

HKSAR v. WONG WAI

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