CACC 558/99







HKSAR Respondent


Coram: Hon Stuart-Moore VP, Leong JA and Wong JA in Court

Date of Hearing: 25 February 2000

Date of Judgment: 25 February 2000




Leong JA (giving the judgment of the Court):

1. On 2 November 1999, the applicant pleaded guilty before Deputy Judge Wesley Wong in the Court of First Instance to one count of robberyand one count of theft. For the robbery count, he was sentenced to 5 years and 4 months imprisonment and for the theft count he wassentenced to 1 year imprisonment, consecutive, making a total of 6 years and 4 months imprisonment.

2. The facts admitted by the applicant were that on 18 January 1999 at about 2:40 a.m. the applicant broke into the home of PW1 at FlatC 2/F., Block 12, No. 9, Shan Yin Road, Tai Po, New Territories. He hid himself in the store room. When PW1 went into the kitchenand store room to make the check, the applicant grabbed PW1 in the neck, pointed an iron bar at his throat and demanded money. WhenPW1 told him he had none, the applicant continued grabbing PWl’s neck, dragged him to the sitting room. There, still holding PW1by the neck, the applicant ransacked the premises. After finding some cash and other properties, the applicant fled. In the earlyhours of the following day, 19 January 1999, patrolling police officers saw the applicant get into a light goods vehicle parked bythe roadside. The police officers later found him sitting in the vehicle. He was wearing a pair of workmen’s gloves, and was searchingfor things in the vehicle. The driver of the vehicle was notified and he found that he had lost some coins and minor things fromthe vehicle. The applicant was then arrested for theft.

3. The applicant was an illegal immigrant and he had sneaked into Hong Kong only two days before he committed the robbery.

4. The Judge, in sentencing the applicant, considered that the applicant had used violence against the victim and had treated him ina most inhumane manner. The Judge took 8 years as the starting point for the robbery count. For the theft count, the Judge consideredit an aggravating factor that the applicant committed the theft one day after he had committed the robbery. He adopted 18 monthsas a starting point. Discounting these two sentences by 1/3, he sentenced the applicant to a total of 6 years and 4 months imprisonment.

5. The first ground of appeal is that the Judge took too high a starting point for the robbery count. Ms Anita Ma for the applicantsubmitted that the applicant originally intended to burgle the place but the burglary turned into a robbery when the applicant alertedthe victims. She submitted that the applicant did not bring any weapon into the premises and that he only resorted to violence bygrabbing and dragging the victim when he felt terrified and tried to escape. She further submitted that the applicant had neitherassaulted nor gagged or tied up anyone during the robbery. Ms Ma submitted that based on the guidelines of R v Mo Kwong-sang [1981] HKLR 610, the appropriate starting point should be one of 7 years imprisonment.

6. In our view, there was an invasion of residential premises at night. The violence used in this robbery was not minimal. PW1 was grabbedfrom behind in the neck and a metal bar was pointed against his throat. He was then dragged and grabbed while the applicant was ransackingthe premises. The victim must have been terrified throughout this ordeal. It could not be a more traumatic experience for him. Thecase of Mo Kwong-sang states that if any violence is used on any of the victims, a sentence of 7 years should be considered and this sentence should beincreased if there are other aggravating factors including invasion of domestic premises during the night and threats made to victims.In the circumstances of this case, the starting point of 8 years is no way manifestly excessive or wrong in principle.

7. As regards the starting point of 18 months for the theft count, Ms Ma submitted that there was no evidence that the applicant hadprized open the victim’s car and no damage had been caused to it. The value of the property stolen, Ms Ma submitted, was small and18 months imprisonment as a starting point was manifestly excessive.

8. We do not think that the matters submitted by Ms Ma are of any assistance to the applicant. As the admitted facts suggested, theapplicant was wearing workmen’s gloves to prevent detection and he was also prepared to steal property from parked vehicles. Thiswas the second offence he committed within the very short period of time after he had sneaked into Hong Kong. The Judge was entitledto take a serious view. 18 months starting point is nowhere near manifestly excessive.

9. On the question of totality, having regard to the fact that the applicant received a concurrent sentence in the magistrates courtfor his immigration offence for which the sentence would have been consecutive had the theft charge been brought at the same timebefore the magistrate, the total sentence of 6 years and 4 months after discount for these two separate offences of robbery and theftis also not manifestly excessive. The application for leave to appeal against sentence must be refused.

(M Stuart-Moore) (Arthur Leong) (Michael Wong)
Vice-President Justice of Appeal Justice of Appeal


Mrs Anna Y K Lai, SGC, of the Department of Justice, for the respondent

Ms Anita Ma instructed by the Legal Aid Department for the applicant