HKSAR v. YIP WAI LEUNG

bjbj artmann JJA in Court Date of Hearing: 24 March 2009 Date of Judgment: 24 March 2009

J U D G M E N T Hon Hartmann JA (giving the judgment of the Court): This is an appeal against sentence, leave having been granted by a single judge. On 14 October 2008, the appellant pleaded guilty before Deputy District Judge Glass to one count of attempted robbery, contrary to s.10 of the Theft Ordinance, Cap 210, and s.159G of the Crimes Ordinance, Cap 200. He was sentenced to a period of imprisonment of three years and eight months. It is against that sentence that he now appeals. The offence of attempted robbery had taken place more than a year earlier, on 16 July 2007. On that occasion, at about six in the evening, an elderly man, a tourist from the mainland, entered a lift in a residential apartment block in Nathan Road, Mongkok. He was returning from a money exchange and carried with him a bag containing some RMB25,000. The appellant and an accomplice named Chan, both of whom had bad criminal records for theft and like offences, followed the man into the lift and stood with him as the lift made its way up to the 16th floor. When, on reaching the floor, the man attempted to leave the lift, the appellant and his accomplice prevented him from doing so. They grabbed the bag that he was carrying, attempting to pull it off him. The man resisted, calling for help. In the ensuing struggle, the bag was torn open. A security guard came to the scene and intervened. In the result,

the accomplice, Chan, was apprehended. The appellant, however, managed to escape and was not arrested until nearly a year later. When the accomplice, Chan, came to trial in December 2007, he was prepared to plead guilty to theft but not to attempted robbery. He was, however, found guilty of attempted robbery and sentenced to a term of imprisonment of two years and 10 months. The sentencing judge, Deputy District Judge Dufton, calculated an appropriate starting point of three years and six months imprisonment, declining to treat Chan's numerous previous convictions as an aggravating factor on the basis that they had not included any previous conviction for robbery. He did, however, in calculating the appropriate sentence, give credit to Chan for his plea to theft and to his consequent admission to virtually all of the prosecution evidence. When the appellant himself appeared before Deputy District Judge Glass, the judge calculated an appropriate starting point of five years and six months imprisonment, giving the appellant a one third reduction for his plea of guilty. In coming to his starting point, the judge first took into account as an aggravating feature that the attempted robbery had taken place in private premises and that, although no weapons had been employed and the physical violence had been minimal, the attempted robbery had been committed upon an elderly gentleman,

a man of 73 years of age, by two men acting in concert. In respect of these factors, the judge was of the opinion that an appropriate starting point would be five years. The judge then went on to take into account, as a further aggravating feature, the fact that the appellant had what the judge described as an appalling criminal record, a record which included some 12 offences of pick-pocketing, theft or conspiracy to steal. He noted that, despite a prison sentence of four years and six months for conspiracy to steal which the appellant had begun to serve in September 2004, within months of his release the appellant had committed the offence for which he now stood to be sentenced. The judge considered that this aggravating feature; namely, his criminal record, merited an increase in the starting point to one of five years and six months. The appellant, who appears today in person, complains that, while both he and his accomplice, Chan, were given a one third discount, there is a material disparity between the sentence imposed on Chan, one of just two years and 10 months, and the sentence imposed upon himself, one of three years and eight months. This is aggravated, he suggests, because he was not the mastermind of the attempted robbery. There is of course a disparity of 10 months. But it is well established that, where different sentences are passed on different occasions by

different judges on different accused for the same offence, then the only consideration is whether the sentence passed on an appellant, such as the appellant in this present case, is an appropriate sentence. In this regard, see R So Hung-lee and Another [1986] HKLR 1049. Accordingly, if it is the case that Chan received a light sentence, established principle makes it plain that the appellant is not himself, by reason of that fact alone, entitled to a similarly light sentence. The issue therefore is whether the sentence imposed upon the appellant is itself a proper sentence in that it is neither manifestly excessive nor wrong in principle. In our judgment, the starting point of five years and six months adopted by the judge cannot be criticised. The judge was entitled to take into account as aggravating features the fact that the attempted robbery took place in private premises and that the appellant was acting with another man, the two of them attempting to rob an elderly man. On the basis of well established authority, the judge was also entitled to take into account that the appellant had a long history of life criminal conduct, not only in respect of offences of dishonesty but also in respect of offences of violence including common assault, assault occasioning actual bodily harm and assaulting a police officer. The principle which guided the sentencing judge was stated by

this Court in HKSAR v Chan Pui-chi [1999] 3 HKC 848. In its judgment, this Court said: We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none ... This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. The Court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection.... In our view, the assessment of the sentencing judge that the aggravating feature of the appellant appalling criminal record merited a higher starting point of six months was neither manifestly excessive nor wrong in principle. In summary we are satisfied that the starting point of five years and six months fell within the permissible limits for an offence of attempted robbery of the kind committed by the appellant and his accomplice. Accordingly, the appeal is dismissed. (Frank Stock) Justice of Appeal (M.J. Hartmann) Justice of Appeal Ms Winsome Chan, SPP, of Department of Justice, for the Respondent The Appellant, in person

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