Hon Yeung JA (giving the Judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

Background
背景

The applicant, Yeung Chuen Tai, pleaded guilty to a charge of theft before District Judge Andrew Chan and as a result, was sentenced to 32 months’ imprisonment. The Judge adopted a starting point of 4 years and on account of the applicant’s plea, discounted it by one-third to 32 months.
申請人楊全帶在區域法院法官陳慶偉席前承認一項盜竊罪，結果被判入獄32個月。陳法官以4年為量刑基準，並因申請人認罪而將刑期扣減三份一至32個月。

The applicant now seeks leave to appeal against the sentence.
申請人不服判刑，現提出申請要求獲准就判刑上訴。

Facts
案情

The victim of the case, Madam Wu, who was 78 years old, lived alone and relied on her son for support. Madam Wu had operated a guesthouse called “Fu Yiu Villa” (富瑤小築) in Phoenix Apartments in Causeway Bay before. The applicant came to know her as he had been a resident in the guesthouse, and was employed by her as a relief worker.
案件受害人鄔女士78歲，獨居並倚靠兒子供養。鄔女士曾在銅鑼灣鳳鳴大厦經營一所名為“富瑤小築”的賓館。申請人因曾是賓館的住客而認識鄔女士及獲鄔女士聘用為替工。

“Fu Yiu Villa” ceased business in 2006 but Madam Wu continued to employ the applicant to decorate her residence.
2006年“富瑤小築”結業而鄔女士繼續聘用申請人裝修其住所。

Starting from September 2008, the applicant frequently asked Madam Wu to lend him money. On each occasion, the loan was not more than $100. On 3 October 2008, the applicant again went to Madam Wu’s residence to demand money. When she refused to open the door, the applicant caused a disturbance outside the door and made nuisance by inserting a two-foot long aluminium strip through the ventilation window in the living room. Being at her wit’s end, Madam Wu had no choice but to open the wooden door of her residence. The applicant rushed into the premises immediately, grabbed hold of Madam Wu’s upper body with both hands and dragged her into the bedroom. Madam Wu shouted aloud, “Help!” She asked the applicant what he wanted. The applicant responded, “I want money, and life as well!” Extremely frightened, Madam Wu handed over $8,000 to the applicant. The applicant took off immediately after taking the money.
2008年9月開始，申請人經常向鄔女士借錢，每次不多於100元。2008年10月3日，申請人再次去鄔女士住所索取金錢。鄔女士拒絕開門後，申請人在門外搗亂，並用一兩呎長的鋁條穿過客聽的通氣窗，製造滋擾。鄔女士在無計可施的情況下，被迫打開住所木門。申請人隨即衝入屋內，雙手抓着鄔女士的上身，拖她入睡房。鄔女士大叫“救命”，並問申請人想要甚麼，申請人回應說：“我又要錢，又要命！”鄔女士大驚之下，將8,000元拿給申請人。申請人取得錢後，便立刻逃走。

The applicant had a clear record. He claimed that he suffered from the disease of corneal detachment and he had lost all the money that he had taken in mahjong games.
申請人沒有犯罪記錄。他聲稱患有眼角膜脫落症，而取得的金錢都輸在麻雀檯上。

Reasons for sentence
判刑理由

Judge Chan took the view that although the offence to which the applicant pleaded guilty was theft, the facts which he admitted indicated that the elements of the offence of robbery were all there. As a result, he decided to sentence the applicant on the basis of an offence of robbery.
陳法官認為雖然申請人承認的是盜竊罪，但其承認的案情顯示搶劫罪的元素均在，故他決定以搶劫罪懲處申請人。

Judge Chan emphasized that Madam Wu was of advanced age and her financial position was not strong. Yet, the applicant applied force on her and stole from her $8,000, an amount of money which was not insignificant to her. The judge was of the view that the crime that the applicant committed must have caused great fear to Madam Wu. He took a starting point of 4 years, and because of the guilty plea of the applicant, he discounted it by one-third to 32 months.
陳法官強調鄔女士年屆古稀之年，經濟能力不強，申請人郤對她施加武力盜取一筆對鄔女士而言屬數目不少的8,000元。陳法官認為申請人的罪行必會對鄔女士造成極度恐慌。陳法官以4年為量刑基準，並因申請人認罪，而將刑期扣減三份一至32個月。

Ground of appeal
上訴理由

Mr. Lo, Counsel for the applicant, stressed that Judge Chan should not have sentenced the applicant for an offence of which he had not been convicted, namely, the offence of robbery, and the starting point adopted by the judge was also manifestly excessive. Mr. Lo cited the cases of HKSAR v Tsang Wai Man (CACC 288/2006) and R v Yung Wing Hong (HCMA 386/1996) in support of his position.
代表申請人的羅沛然大律師強調陳法官不應以申請人未被定的罪行，即搶劫罪來懲處他而陳法官採納的量刑基準亦屬明顯過高。羅大律師援引HKSAR V Tsang Wai Man (CACC 288/2006) 及R v Yung Wing Hong （HCMA 386/1996）等案支持其立場。

Discussion
討論

The applicant gained entry into Madam Wu’s residence by rough means with a view to taking money from her. It was sheer luck that Madam Wu did not sustain any sprains, falling down or injury which might result from her bumping against the furniture when she was dragged into the bedroom by the applicant. The home is supposed to be the safest place. Yet Madam Wu had to withstand disturbances made by the applicant for a long period of time. The applicant should be strongly condemned for the crime that he committed. When considering the sentence to be imposed, the court should take into account all the facts of the case, including any aggravating factors.
申請人用粗暴的手段進入鄔女士的居所，目的是取得鄔女士的金錢。申請人把鄔女士拖行入睡房時沒有令她扭傷、跌倒或撞倒家具釀成損傷只是幸運而已。家本來應該是最安全的地方，但鄔女士卻要長期忍受申請人滋擾。申請人的罪行需受強烈譴責，法庭考慮判刑時，亦應將整件案件的案情，包括加重罪責的因素考慮在內。

However, the court cannot sentence a defendant for a crime that he/she has not been charged with or convicted of. It is not for this court to be concerned with the question of why the prosecution did not charge the applicant with the offence of robbery. But it is undisputed that what the applicant faced with and convicted of was just an offence of theft. The applicant must be sentenced for the offence of theft. It is contrary to sentencing principle and inappropriate for Judge Chan to sentence the applicant for an offence of robbery. We cannot lose sight of the fact that the maximum sentence for an offence of theft is 10 years’ imprisonment while that for robbery is life.
但法庭不能以被告人未被檢控或未被定罪的罪行來懲處他。控方為何不以搶劫罪控告申請人，並非本庭要關注的問題，但申請人面對的只是盜竊罪及被定此罪亦是不爭的事實。申請人必需以盜竊罪罪名被判刑。陳法官以搶劫罪懲處申請人違反判刑原則，是不適當的。本庭不能忽視盜竊罪的最高判刑是10年監禁，而搶劫罪的最高判刑則為終身監禁。

The use of force on Madam Wu by the applicant in the course of the theft is certainly an aggravating factor. But the basis for the sentence must still be the offence of which the applicant was convicted and not any other offence.
當然在盜竊過程，申請人對鄔女士使用武力，必然是加重罪責因素，但判刑基礎仍需是申請人被定之罪，而非其他控罪。

Although the applicant did use force on Madam Wu, his purpose was to restrain her and to drag her into the room. The force that he used was not very serious and did not result in any injury to her.
雖然申請人確有對鄔女士使用武力，但他的目的是控制鄔女士，拖她入房。申請人使用的武力，並非十分嚴重，亦沒有對鄔女士做成任何傷勢。

For an ordinary theft of $8,000, the sentence should not be beyond 18 months. Even taking into account the fact that the applicant threatened and bullied an old lady of 78 years by means of force, in our view, a starting point of sentence of 33 months is sufficient to reflect the seriousness of the incident. In taking this starting point, we have also taken into account the clear record of the applicant.
以一般盜竊8,000元的罪行而言，判刑不應超越18個月，即使將申請人威嚇及以武力欺負一名78歲婆婆一事考慮在內，本庭認為33個月的量刑基準已足以反映事件的嚴重性。在定出上述量刑基準時，本庭亦考慮到申請人並無任何犯罪記錄。

On the facts of the case as a whole, we are of the view that the starting point of 4 years adopted by the judge on the basis of an offence of robbery is wrong in principle and excessive. In considering the sentence for an offence of theft and for the applicant having a clear record, the appropriate starting point is 33 months. He is entitled to one-third discount on account of his plea.
以整體案情而言，本庭認為原審法官以搶劫罪為基礎而採納的4年量刑基準原則性犯錯，亦過高。以控罪是盜竊罪而申請人並無任何犯罪記錄來考慮判刑，適當的量刑基準為33個月。申請人認罪，故應獲三份一刑期扣減。

We grant leave to the applicant to appeal against sentence and treat the application as the hearing of the appeal. We allow the applicant’s appeal and the sentence is reduced from 32 months to 22 months.
本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭判申請人上訴得直，刑期由32個月減至22個月。

Miss Mary Sin, SADPP of the Department of Justice, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員冼佩霞代表。

Mr. P. Y. Lo, instructed by Messrs. C. L. Chow & Macksion Chan, assigned by the Director of Legal Aid, for the Applicant.
申請人：由法律援助署委派周立、陳啟球、陳一理律師事務所轉聘大律師羅沛然代表。