HKSAR v. THAPA MIN BAHADUR

CACC 284/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 284 OF 2014

(ON APPEAL FROM DCCC 322/2014)

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BETWEEN

HKSAR Respondent

and

THAPA MIN BAHADUR Applicant

____________

Before: Hon Lunn VP, Hon McWalters JA and D Pang J in Court

Date of Hearing: 24 February 2015
Date of Judgment: 24 February 2015
Date of Reasons for Judgment: 6 March 2015

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REASONS FOR JUDGMENT

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Hon D Pang J (giving the reasons for judgment of the court):

1. The applicant was convicted after trial by Judge K Browne in the District Court of one charge of robbery. He was sentenced to 4 years’imprisonment. He gave notice to apply for leave to appeal against both conviction and sentence. The applicant was represented bycounsel in his application in respect of sentence, but acted in person in his application in respect of conviction. We dismissedthose applications. These are our reasons.

Allegation

2. The allegation was that at about 3.30 am on 2 April 2014, the applicant (aged 24) robbed a female Tang Hau-ling (aged 46) of a mobilephone near the junction of Cheung Sha Wan Road and Pei Ho Street.

Prosecution Case

3. Tang’s evidence, briefly stated, was as follows. She was walking and checking her phone when she felt someone pulling her arm. She turned around and saw a man pulling at the straps of her shoulder bag. This man, in his early twenties, had his face coveredby a scarf. Tang shouted “help” and “robbery” about ten times. Throughout she struggled with the applicant to hold on toher bag. In the end, the man desisted and snatched her phone (Exhibit P1) and fled. Although Tang continued to shout and give chase,she lost sight of the man. Instead, she was met by a woman who told her that the man had been caught. When the police arrived,Tang was led to an alley where the man was held. She was shown a phone which she confirmed belonged to her. In court, she identifiedthe applicant’s scarf as the scarf of the man who robbed her.

4. Peter Chau was the second prosecution witness. He and Li Lai Ying were sworn brother and sister. They heard a woman shouting “robbery”,and a man with a scarf over his mouth appeared. Chau found the wearing of a scarf odd in the then weather conditions. He challengedthe man, and the man started running. Chau gave chase and after about 100 yards, tackled the man to the ground. The man asked Chauto let go of his hand. Chau did, and the man threw something out from his rear trouser pocket. This was picked up by Li who, bythen, had caught up. Chau saw that item to be a mobile phone. When the police arrived, they took the man away. That man was theapplicant. In court, Chau identified the applicant’s scarf as the scarf worn by the man he captured. He could recognise it byits special dotted pattern.

5. Li also gave evidence. She spoke corroboratively of a woman shouting for help, of Chau giving chase to a man whose face was maskedby a scarf, of meeting a woman whose phone had been snatched, of Chau struggling with the man and of the man discarding a phone whichshe picked up and handed to the police. In court, she identified the applicant’s scarf as the scarf worn by the man who was apprehended.

6. PC 9415 was the fourth prosecution witness. He arrived at the scene to find Tang, Chau and Li guarding the applicant. He remembered seeinga colourful scarf round the applicant’s neck. He found a pair of black plastic gloves from inside the applicant’s right trouserpocket.

7. WPC 6893 was the fifth and last prosecution witness. She arrived at the scene with PC 9415. She was handed Exhibit P1 by PC 9415.

Defence Case

8. The applicant gave evidence. His evidence was as follows. He lived in Nepal before coming to Hong Kong in 2005. He was unemployed. He was out jogging at the time of the offence. He ran through an alley to take a short cut to a public convenience. In the alley,he was pushed to the ground by Chau and held down. He denied ever having Exhibit P1 in his possession. He denied being involvedin Tang’s robbery.

9. The applicant admitted wearing a scarf, but only over his upper head to keep his hair back. He said he would sometimes wear jeansand a jacket to go jogging. He denied having the black plastic gloves in his right trouser pocket. He said they were in a waistbag that he was carrying. He used those gloves at home for washing up. He could not explain why he had taken them out for jogging. He said he had no idea why Chau knocked him down. He could not explain why he did not cry out for help.

Reasons For Verdict

10. The following are the core passages in the trial judge’s Reasons for Verdict:

“28. I found [Tang, Chau and Li] to be reliable and credible witnesses. I noticed that there were certain discrepancies between their versions as to precisely whathappened at the relevant time but, in my view, the discrepancies were of a minor nature.

29. …. I bore in mind that [Tang] never saw the fact of the robber. I was sure that she recognised the scarf found on the defendant when he was arrested as being verysimilar to the scarf worn by her attacker. I was sure that she correctly identified P1 as being her mobile phone …..

30. I was sure that the defendant walked past [Chau] a few minutes later wearing a scarf covering his face and that, given the weather conditions, [Chau] found this odd. I was sure that after hearing a lady’s voice shouting out ‘robbery’ [Chau] saw the defendant start to run and followed him to an alley. I was sure after 100 yards [Chau] pushed the defendant to the ground and whilst holding him upon the ground the defendant took out a white object from this rear pocketand discarded it the ground. I was sure that [Li] picked up the object which was later identified by [Tang] as being her mobile phone, P1, which had been stolen from her nearby a few minutes earlier …..

31. The defendant was unable to give any explanation as to why he was carrying a waist bag with him at the time. I was sure he waslying as to the reason he was in the area. I did not believe his evidence. The fact that I did not believe his evidence did not meanhe was guilty of the offence. I had to consider the evidence I did accept and decide if that satisfied me of the guilt of the defendantto the required standard.

32. The totality of the evidence left me in not doubt that the defendant was the person who had stole P1 from [Tang] in the circumstances she described to the court. I was sure that the defendant robbed [Tang] of her mobile phone.”

The Appeal Against Conviction

11. In a note attached to his Notice of Application for leave to appeal (Form XI), the applicant stated that the conviction did not convincehim. That was his only ground of appeal. Before us, he had nothing to add to that ground by way of written or oral supplements.

12. There is no merit in this application. The evidence against the applicant was overwhelming. We have seen the scarf he was wearingand were struck by its distinct colour and pattern. This scarf, in fact a snood, the close proximity in time between the robberyand his apprehension and the fact that he was seen discarding Tang’s phone all point to one irrefutable conclusion. We had nodifficulty dismissing his application.

The Appeal Against Sentence

13. Mr Tze who appeared for the applicant in respect of sentence had advanced two, but in effect one, ground:

Ground 1

“The starting point and the sentence of 4 years’ imprisonment is manifestly excessive in regard to the circumstances of the case,namely, no weapon was used in the commission of the charge; the victim was not injured; no violence has been inflicted on the victim;incident was a snatching even other than a real robbery.”

Ground 2

“In all the circumstances of the case and the applicant and under the totality principle, the sentence is manifestly excessive.”

14. Mr Tze prayed in aid two cases: HKSAR v Ku Kwok Wai & Another CACC 14/2012, 18 July 2012 (unreported) where sentences of 2 years and 2 months after plea were imposed in a two-man robbery committedin allegedly similar circumstances; and R v Yau Kwok-ting [1987] HKLR 782 where Roberts CJ observed at 783 that “a sentence of four years is at the top end of the tariff for robberies where weapons arenot displayed.”

15. We are not persuaded that this application should succeed.

16. The facts in Ku Kwok Wai were that at 5 o’clock in the morning, whilst waiting for the lift in the lift lobby of the building where she lived, a 17-yearold student was robbed of her i-Phone by the two defendants who had followed her in from the street. The force used in this robberywas a forceful push on the victim’s back before her phone was snatched away from her hand. In passing sentence, the judge advertedto the following facts: the victim was confronted by only one defendant (the other defendant having stayed at the building entranceas a lookout); no weapon was used; the robbery was committed in a public place; the violence used did not result in any injury. It is also of note that the defendants aged 21 and 22 respectively were of clear record. In upholding the sentences of 2 years and2 months (starting points: 3 years and 3 months), this Court, differently constituted, endorsed the judge’s observation that thiscase was but “one step up from a theft or snatching”.

17. In Yau Kwok-tung, at an unspecified time (just “the early hours of the morning”) and an unspecified place (there is no mention of location), ahusband and wife were reported in the judgment to have been stopped by the defendant and another man who demanded to see their identitycards. The husband was searched and $300 was taken from him. One of the robbers (it is unclear which one) snatched a necklace fromthe wife’s neck but returned it when told it was a fake. It was against these facts that, quoted in full, the then Chief Justicesaid: “A sentence of four years, in the circumstances of this case, is at the top end of the tariff for robberies where weaponsare not displayed. Nevertheless, the offence took place at night, the victims were frightened and we do not regard it as so manifestlyexcessively that it would be proper for us to interfere with it.”

18. Unlike Ku Kwok Wai, the present case was not “one step up from a theft or snatching”. There was a sustained struggle to force Tang to let go ofher bag. It was only when that failed that her phone was snatched. Other aggravating features included the preying on a singlewoman late at night and the fright that the victim must have suffered from being attacked from behind by a masked robber. The useof a scarf as a means to conceal identity, given the weather conditions, also evidenced planning. As can be seen from the Reasonsfor Sentence, those were the factors that had weighed on the judge’s mind when sentencing the applicant:

“2. …. at 3.30 am on 2 April of 2014, Miss Tang was walking by herself on her way home …. [the applicant], who was then masked in a scarf, suddenly approached from behind and grasped her right arm and attempted to snatch her shoulder bag.There then followed a struggle during which the victim struggled to retain hold of her shoulder bag with both hands while still holdingthe phone ….

……..

14. No weapon was used in the commission of the offence. Fortunately, Miss Tang was not injured. Despite the struggle which took placeat the scene of the robbery with Miss Tang when [the applicant] attempted to grab her bag, [the applicant] did not strike her.

15. However, this is a serious offence. The victim is 46 years of age. She was walking on her own at 3.30 in the morning. [The applicant] made a concerted effort to grab her bag. And I was satisfied on the facts that [the applicant] had gone out deliberately seeking a victim in this case. [The applicant] had obscured part of [his] face with a scarf. For this lady, it must have been a terrifying experience.”

It should be added that, unlike the defendants in Ku Kwok Wai, the applicant did not have a clear record. For a convicted theft in September 2012, he was sentenced to 4 weeks’ imprisonment,suspended for 12 months.

19. In as much as the above factors explain why, in relation to Ku Kwok Wai, a higher sentence should be passed in the present case, the same factors justify a sentence that is equal to that in Yau Kwok-ting. In the Yau case, the force used was minimal; and if the involvement of two robbers was considered more serious (which is accepted), the presenceof another victim (a spouse at that) would certainly lessen the fear.

20. As this Court has repeatedly pointed out, a strict comparison with past cases is often unhelpful in reaching the correct sentencein a particular matter. There will be decisions in which defendants facing similar facts may appear to have been more lenientlydealt with but, overall, we are satisfied that the sentence in this case is not manifestly excessive. We do take issue with thejudge when he said “the normal sentence for offences of this kind where no weapon is used is a sentence of 4 years’ imprisonment” (paragraph 16 of the Reasonsfor Sentence). There is a range of sentence within which the sentence appropriate to the particular circumstances of the individualcase is to be chosen. Whilst the sentence under consideration is on the high side it is not outside the appropriate range.

21. For those reasons, the application for leave to appeal against sentence was also dismissed.

(Michael Lunn) (Ian McWalters) (D Pang)
Vice President Justice of Appeal Judge of the Court of First Instance

Mr Raymond Cheng, SPP of the Department of Justice, for the respondent

Mr James Tze, instructed by Director of Legal Aid, for the applicant (on conviction)

The applicant appeared in person (on sentence)