judgment
判案書

In the small hours of 28 September 2002, the victim was transporting 7 cardboard boxes of 1,050 brand new “Samsung” mobile phones (“the stolen property”), which were worth HK$1.7 million.  When he reached the open area between Ka Fai House and Ka Yeung House of Ka Shing Court, Fanling, he was intercepted by a total of about 8 men (one of whom being the applicant herein), who fisted him and kicked him and tied him up with black plastic strips. The gang of robbers then robbed the stolen property and fled.
2002年9月28日凌晨，受害人在運送7個紙箱，內有價值港幣170萬元，共1,050部簇新的「三星」牌手提電話（「失物」）途中，到達粉嶺嘉盛苑嘉輝閣與嘉楊閣之間空地時，被共約8名男子（包括申請人）截停並拳打腳踢，並被他們以黑色膠帶綑綁。該夥劫匪在劫去失物後便逃離現場。

After trial before Deputy District Judge Sham, the applicant was convicted of the offence under section 10 of the Theft Ordinance, Cap. 210, and was sentenced to 6½ years’ imprisonment.
申請人在區域法院暫委法官沈小民席前，經審訊後被裁定第210章《盜竊罪條例》第10條罪名成立，判刑6年半。

The applicant now applies to this Court for leave to appeal against sentence.
申請人不服，現向上訴法庭申請判刑的上訴許可。

Deputy Judge Sham explained how he arrived at the sentence, as follows:
沈法官就判刑作以下解釋：

In the absence of evidence to show that the offenders had used weapon in the course of robbery, I classify the present offence as a robbery not involving the use of weapon. That said, there are aggravating features in the present case. The victim was fisted and kicked by about 8 men. First, in my view it was simply unnecessary to use this kind of force on one victim when there were as many as 8 culprits. Furthermore, the injuries sustained by the victim were by no means minor. His forehead was lacerated and the wound had to be sutured. He also suffered different kinds of injuries on various parts of his body. Although he was discharged from the hospital on the same day, it does not mean that his injuries were not serious.
本案沒有證供顯示行劫時犯事者有使用武器，本席視之為非使用武器這類的劫案，但話雖如此，本案有其增加罪行嚴重性之處，就是受害人受到約有八名男子拳打腳踢。首先本席認為，賊人已經有八個人之多，對付一個受害人，根本無需要使用這般武力，再者，受害人所受的傷並不輕微，他前額有裂傷需要縫針，而身體各處地方亦有不同的傷勢，雖然即日可以出院，但並不代表他所受的傷並不嚴重。

On the facts of this robbery in which the defendant took part, I first of all regard it as a robbery not involving the use of weapon. However, in view of the fact that he committed the offence together with others, I adopt 4 years as the starting point. To this, I add 1½ year on account of the harm done to the victim, and another one year in light of the fact that the value of the stolen property involved is approximately $1.7 million. The total term of imprisonment is 6½ years.”
就被告人參與是次打劫，以案情而言，首先本席視之為非使用武器的劫案，但是夥同他人作案的，就這情節而言，本席以四年作為量刑起點，考慮到受害人所受的傷害，本席加多一年半，再考慮到本案所涉及的失物之價值約有一百七十萬，再加一年，總刑期六年半。」

As early as in 1981, in the case of Mo Kwong Sang v R [1981] HKLR 610, the Court of Appeal had already laid down sentencing guidelines for the offence of armed robbery:
上訴庭早在1981年在茆廣生 訴 女皇 Mo Kwong Sang v R [1981] HKLR 610一案中，已就持械搶劫罪作判刑指引：

“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.
「本庭建議法庭日後如此判刑：普通持械搶劫案的被告人犯案時若攜帶刀或其他危險武器，並曾向受害人展露其所攜武器，一般應判刑五年。

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.
如被告人作案時還闖入私人處所(包括住宅和商用處所，以及該等處所的公用地方，例如升降機、樓梯等)，則宜判刑六年。

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.
如被告人對受害人施以暴力，包括綑綁對方，則應考慮判刑7年。

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.
如果還有其他罪加一等的因素，更應延長上述建議的刑期。這些因素，包括夜闖私人住所、糾黨行劫、恐嚇受害人、虐待長者及兒童、屢犯同類案件，凡此種種，不勝枚舉。

These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.
上述指引僅適用於經審訊後被定罪者。因此，如被告人認罪，以上見議的刑期可按法庭認為適當的幅度遞減。

Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”
當然，我們無意阻撓法庭根據被告人的犯案記錄、年齡或其他個人境遇，或考慮案中的具體事實，而酌量調整上述刑期。」

Furthermore, in the case of HKSAR v Ting Chiu & another [2003] 3 HKLRD 378, which involved four unarmed persons robbing a married couple who were having a walk at night, the Court of Appeal held that the appropriate starting point was 4 years. Likewise, in HKSAR v Lam Ka Hung CACC 294/2003, the Court of Appeal also adopted a starting point of 4 years for an unarmed robbery.
再者，在香港特別行政區 訴 丁超（譯音）HKSAR v Ting Chiu & another [2003] 3 HKLRD 378中，四名賊人沒有持械搶劫一對夜遊的夫婦。上訴庭認為適當的量刑基準是4年。同樣，在香港特別行政區 訴 林家雄 HKSAR v Lam Ka Hung CACC 294/2003，上訴庭亦同樣對非持械搶劫罪採納4年的量刑基準。

In Ting Chiu, four unarmed culprits robbed a married couple who were hiking. The Court of Appeal considered a starting point of 4 years appropriate. Similarly, in Lam Ka Hung, which involved a robbery where no weapon was displayed, the Court of Appeal accepted 4 years’ imprisonment as the appropriate starting point. In neither of these two cases did the offenders display any weapon or harm any person.
在丁超一案，四名賊人搶劫一對行山的夫婦，沒有持械，上訴庭認為適當的量刑基準是4年。在林家雄一案，對沒有展露武器的搶劫，上訴庭同樣接納適當的量刑基準為4年監禁。在這兩案例中，匪徒並無展露任何武器，又無傷人。

Finally, in Secretary for Justice v Au Chi Hang & Others [2006] 2 HKLRD 310, the Court of Appeal confirmed that a gang robbery, a robbery committed in the small hours, the use of violence and the infliction of injuries upon the victim are aggravating factors which justify an enhancement of sentence. (See paragraphs 48 and 49 of the Judgment)
最後，在律政司司長 訴 區志恆及其他人[2006] 2 HKLRD 310，上訴庭確定糾黨行劫，於凌晨時分行劫，使用暴力，令受害人受傷等，都是加刑因素。（見判詞第48及49段）

In light of the above, we see nothing improper for the trial judge to adopt, as he did, a starting point of 4 years.
由此可見，原審法官以4年作量刑起點，並無不妥。

We also consider it reasonable for the trial judge to enhance the sentence by 1½ year on account of the injuries sustained by the victim. As mentioned in Mo Kwong Sang, the use of violence on the victim by the defendant, including the tying up of the victim, and a robbery involving a gang of robbers, are factors for enhancing the sentence. The present case involves as many as 8 offenders, who had inflicted violence on the victim and tied him up. In our view, therefore, it was reasonable to add 1½ year to the starting point of 4 years.
至於原審法官考慮到受害人受到的傷害，而將刑期多加1年半。本庭亦認為合理。正如茆廣生一案內提到，如被告人對受害人施以暴力，包括綑綁對方，以及糾黨行劫，都是延長刑期的因素。本案犯罪人數多達８人，並對受害人施以暴力和綑綁，因此本庭認為以4年量刑起點再多加1年半屬合理做法。

The trial judge further enhanced the sentence by one year on account of the value of the stolen property at HK$1.7 million. On this point, although the value of stolen property is not necessarily irrelevant for sentencing purposes, the Theft Ordinance expressly provides as follows:
另外，原審法官以失物價值港幣170萬為由再額外多加1年刑期。關於這點，雖然失物價值並非與刑期一定無關，但是《盜竊罪條例》清楚指出：

Robbery
搶劫罪

(1)A person commits robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. ”
(1)任何人如偷竊，而在緊接偷竊之前或在偷竊時，為偷竊而向任何人使用武力，或使或試圖使任何人害怕會在當時當地受到武力對付，即屬犯搶劫罪。」

This shows that the focus of the offence of robbery is on force. Generally speaking, therefore, the pecuniary loss suffered by the victim is a secondary sentencing consideration. The sentences should normally be the same no matter whether the victim only had 5 dollars on him or was wearing a gold wristwatch worth $100,000.
由此可見，搶劫罪的重點在於武力，所以一般來說，受害人的金錢損失屬次要考慮。無論受害人身上只有5元，或手上帶有一隻價值10萬元的金錶，普遍來說刑期應相同。

Furthermore, where a robbery involved substantial property, it usually also involved a gang of robbers and the use of weapon or force. As these are both aggravating factors, it is normally unnecessary for the court to further adjust the sentence by reference to the value of stolen property.
況且如果案件涉及較多財物，這類案件一般都涉及糾黨行劫和使用武器或武力，這些都是加重刑期的元素，所以通常不需另行以失物價值調整刑期。

In our view, the above reason may serve to explain why none of the cases referred to above specifically referred to the value of the robbed property as a sentencing consideration.
本庭認為上述理由或可解釋為何以上案例均無就行劫所得物件的價值而特別指出量刑。

In all the circumstances of the present case, we take the view that an overall sentence of 5½ years’ imprisonment is more appropriate for the applicant and that the term of 6½ years is manifestly excessive. Accordingly, we allow the applicant’s application for leave to appeal and, treating the application as the appeal proper, allow the appeal and reduce the term of imprisonment from 6½ years to 5½ years.
綜合本案案情，本庭認為申請人的總刑期以5年半較為恰當，而6年半則明顯過重。本庭批准申請人的上訴許可申請，視本申請為正式上訴，判上訴得直，並將刑期由6年半減至5年半。

Mr. David Leung, Senior Assistant Director of Public Prosecutions (Acting), for the Respondent.
答辯人：由律政司署理高級助理刑事檢控專員梁卓然代表。

Mr. Jackson Poon, instructed by A. M. Mui & Kwan on assignment by the Legal Aid Department, for the Applicant.
申請人：由法律援助署委派梅智傑姚定邦律師行轉聘潘展平大律師代表。