HKSAR v. LEONG HOW SENG

CACC 59/2025 [2025] HKCA 981 On appeal from [2025] HKCFI 1047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO 59 OF 2025 (ON APPEAL FROM HCCC NO 180 OF 2023) ___

BETWEEN

HKSAR Respondent and Leong How Seng (梁厚誠) Applicant ___ Before: Hon Zervos JA in Court Date of Hearing: 4 November 2025 Date of Judgment: 4 November 2025 Date of Reasons for Judgment: 6 November 2025 __________

R E A S O N S F O R J U D G M E N T __________ The applicant pleaded guilty to one count of attempted robbery (Count 1) and one count of robbery (Count 2) before Douglas Yau J (the judge) in the High Court on the first day of trial. On 11 March 2025, the judge sentenced him to a total term of 11 years’ imprisonment. On 21 March 2025, the applicant filed a notice of application for leave to appeal against the sentence. He complained that his sentence was manifestly excessive (Ground 1), and that the judge failed adequately to consider the mitigating factors advanced on his behalf (Ground 2). In letters dated 23 June and 16 July 2025, the applicant elaborated on his grounds of appeal. He argued that the judge failed properly to consider mitigating factors that would have justified a further reduction in his sentence. These factors included his personal circumstances (old age, ill health, financial hardship, good character, and charity work); the circumstances of the offences and his reasons for committing them; his assistance to the police; his explanation for his late guilty pleas; his previous three years’ imprisonment for convictions later quashed on appeal; and his low risk of reoffending due to anticipated deportation to Singapore after serving his sentence. At the leave hearing on 4 November 2025, the applicant appeared in person, having had legal

aid refused on 12 May 2025. At the conclusion of the hearing, I granted the applicant leave to appeal his sentence and an appeal aid certificate so that he would be legally represented on his appeal. I said I would hand down my reasons in due course. These are my reasons. In order to have a proper understanding of this case, it should be noted that the applicant is an elderly man who is diminutive in stature and nonthreatening in appearance. His date of birth is 28 March 1949, and he was in his 70s when he committed the two robbery offences, which he claimed he did out of desperation to pay his rent. In entering a plea of guilty to both counts, the applicant agreed to a summary of facts outlining the circumstances of the offences. On the evening of 1 July 2020, the applicant attempted to rob a cashier (PW1) at a Mannings store in Prince Edward by thrusting a note at him that read in Chinese, “Robbery! Surrender the money if you want to live, hurry, or you will be burned with gasoline” (Count 1). PW1 was not scared and did not react. The applicant took out a lighter and a bottle of clear liquid, but PW1 remained unfazed. PW1 scolded him and forced him to leave. The applicant fled, leaving the note behind. The incident was captured on a CCTV camera in the store. However, the applicant was not apprehended at the time. Almost two years later, the applicant committed the other

robbery offence. On the afternoon of 14 April 2022, the applicant robbed a bank teller (PW2) of HK$14,000 at a bank in Yau Ma Tei. He posed as a customer and handed PW2 a note that read in Chinese, “Robbery, we have gun, quickly put the money in the bag, failure to cooperate, we will shoot” (Count 2). PW2 triggered a discreet alarm to notify her manager, while the applicant pointed a pistol-like object at her and gave her a bag for the money. When PW2 began counting the cash, he warned her to stop counting or otherwise she would be dead. She then placed a total of HK$14,000 into his bag and gave it to him. He fled with the money, leaving the note behind. The robbery was witnessed by other bank staff and captured on a CCTV camera in the bank. That night, the police arrested the applicant at his residence, where they seized items associated with the robbery, including an air-gun, HK$5,750 in cash, a windbreaker, a mask, a cap, sunglasses, an Octopus card, bags and clothing. Under caution, he admitted robbing the bank because he was in debt and asked for a chance. The police file for the attempted robbery offence (Count 1) had been closed, and the applicant’s conviction for this offence was based on his admissions in his video recorded interviews. He explained that in relation to that matter, the bottle of clear liquid contained water. He also made full admissions in relation to

the robbery offence (Count 2), explaining that he used some of the stolen money to buy a bag, top up his Octopus card, and pay his rent. The applicant, a Singaporean national, at the time of sentence, was nearly 76 years old with a clear record. He lost contact with his wife after moving to Hong Kong in 2007. He had been unemployed and was financially supported by his partner since 2011. In mitigation, the applicant sought a reduction in his sentence for the following factors: his need to care for his partner; his ill health; lack of family support; financial hardship due to social unrest and the pandemic; having been cheated of HK$500,000 by an acquaintance; and threats of eviction for unpaid rent. Defence counsel urged the judge to reduce his sentence for his display of remorse by admitting the offences and cooperating with the police. It was urged on his behalf that he be granted a 25% discount on his sentence for his guilty pleas, which he indicated seven working days before the first day of trial. As for Count 1, counsel submitted that PW1 did not feel threatened as he used a basket to foil the applicant and evict him from the store; the incident lasted less than 30 seconds with no injuries, violence, or other customers present. As for Count 2, counsel noted that the incident lasted about two minutes involving no violence or injuries; no specific sum was demanded; the

bank’s actual loss was only HK$8,000 to HK$9,000; and the air-gun that was used, was not in working order. In his reasons for sentence, the judge comprehensively reviewed the factual circumstances of the offences, the applicant’s background, and mitigation, and found his personal circumstances carried little weight given the seriousness of the offences. As for Count 1, the judge found that the applicant’s act was akin to the brandishing of an imitation firearm with the intention to exploit fear of violence to force compliance with his demand. The judge noted that inflammable liquid could harm innocent bystanders, and PW1, not knowing the liquid was water, must have felt threatened despite his brave response. By reference to HKSAR v Kwok Cheuk Man, the judge distinguished between using actual gasoline and water as the fear-inducing agent. Accepting there was no evidence as to the nature of the liquid, the judge sentenced him on the basis of his out-of-court statement that it was water and adopted a starting point of 5 years and 6 months’ imprisonment. As for Count 2, the judge referred to sentencing authorities concerning the use of imitation firearms. He found that although the bank robbery was simple and involved only the applicant, he had stolen HK$14,000 and spent most of the sum. Having regard to the aggravating factors that the target was a bank, an imitation firearm was

used, and it was pointed at PW2 to threaten her, the judge found the case comparable to HKSAR v Tsang Kin Nam and adopted a starting point of 12 years’ imprisonment. The judge applied a 20% discount for the applicant’s guilty pleas, taking into account the late indication of his pleas and the resulting trial preparation and delay, arriving at 4 years and 4 months’ imprisonment for Count 1, and 9 years and 7 months’ imprisonment for Count 2. Applying the totality principle, the judge ordered 1 year and 8 months of Count 1 to run consecutively with the sentence for Count 2, resulting in a total sentence of 11 years and 3 months’ imprisonment, which was further reduced by 3 months for the applicant’s admissions and cooperation with police. Accordingly, the judge sentenced him to 11 years’ imprisonment. Whilst the judge gave a very detailed and considered analysis of the sentencing principles in this case, there were matters that may have had a bearing on the overall sentence. First, the elderly age of the applicant as a mitigating factor warranting a reduction in sentence. Secondly, the circumstances of the attempted robbery were almost comical, with the applicant being ushered out of the store, and raise for consideration the appropriate starting point and the consecutive element with the other offence. Furthermore, the conviction for this offence was secured on the applicant’s

admission to it. Thirdly, the appropriate percentage discount for the applicant’s pleas of guilty. Fourthly, the appropriate starting point for the robbery offence. In the circumstances of this case, there was a reasonable argument for these matters to be considered in determining whether they will ultimately have a bearing on the applicant’s sentence. (Kevin Zervos) Justice of Appeal Ms Cherry Ho, SPP, of Department of Justice, for the respondent The applicant appeared in person