Barnes J (giving the judgment of the Court):
原訟法庭法官張慧玲宣讀上訴法庭判案書 ：

The applicant pleaded guilty to one count of Attempted Robbery before Deputy District Judge Sham and was sentenced to 4 years and 4 months’ imprisonment. He applies for leave to appeal against sentence.
申請人在區域法院暫委法官沈‍小‍民席前承認一項「企圖搶劫」罪，被判監禁4 年4 個月。申請人就判刑提出上訴許可申請。

The facts of the case
案情

The facts of the case were that the victim was a prostitute in a ‘one-woman brothel’. At around 10:30 pm on the night of the case, the applicant pressed the doorbell of the victim’s unit. As the victim was ‘receiving a customer’, she told the applicant to come later. The applicant arrived at the unit again at 11:18 pm. He negotiated the price with the victim. Both parties agreed that $100 was to be paid as the reward for providing sex service. After they had sex, the victim asked the applicant to pay. All of a sudden, the applicant took out a length of black-coloured electric wire from his shoulder bag and attempted to tie up the hands of the victim, at the same time declaring robbery. The victim resisted. The applicant tried to tie the neck of the victim with the electric wire, and hit her on the head with a remote control device. The victim continued to resist and raised hue and cry. The applicant then fled the scene leaving behind the electric wire. The victim, who was all naked, pursued hotly from behind but the applicant made good his escape. The victim then made a report to the police.
案情顯示受害人是一名「一樓一鳳」的妓女。在案發當晚約10:30 左右，申請人按受害人單位的門鈴。因受害人當時正在「接客」，她著申請人稍後才來。申請人於11:18 再次到達單位，與受害人議價。雙方同意以$100作性交易的報酬。在完事後，受害人要求申請人付款，申請人突然間從其肩袋拿出一條黑色電線，試圖綑綁受害人雙手，並聲稱搶劫。受害人作出反抗，申請人試圖用該電線綁受害人頸部，並用一個遙控器打受害人頭部。受害人繼續反抗，並高聲呼救。申請人遂遺下電線逃離現場。全裸的受害人在後窮追，但被申請人逃脫。受害人於是報警。

The police later found the applicant on the rooftop of the building where the unit was. Under caution, the applicant admitted that he tied up the hands of the victim with electric wire to rob her after having sexual intercourse with her, but the victim resisted, so he fled the scene after hitting her on the head a few times.
其後警員在單位處所大廈的天台發現申請人。申請人在警誡之下承認他在與受害人性交後，用電線綁受害人的手行劫，但受害人反抗，他打了受害人頭部數下便逃離現場。

The victim of the case was injured. There were bruises on her forearm and forehead and laceration on the corner of her left eye.
受害人在案件中受傷，她的前臂及前額有瘀傷、左眼角有裂傷。

Reasons for sentence
法官的判刑理由

In passing sentence, Deputy District Judge took into account that this was not a case of Armed Robbery. After referring himself to the cases of Cheng Fuk Wa and Lai Kwok Fai (transliteration)----two cases involving robbing ‘one-woman brothel prostitute’ with arms---and the facts of this case, he adopted 6 years as the starting point. The Deputy District Judge went on to point out that neither defendants of the above cases had sex with the prostitutes first before robbing them. The applicant, however, had used the sexual service but not paid for it.  Citing the case of Luk Hau Cheung, he was of the view that the sentence should be increased to 6 ½ years to reflect the gravity of the case. Allowing the usual 1/3 discount, the applicant was sentenced to 4 years and 4 months’ imprisonment.
法官在判刑時考慮了本案並非一宗「持械行劫」案件。他考慮了案例鄭福華及黎國輝——兩宗涉及持械行劫「一樓一鳳」的案件——及本案案情後，以6 年為量刑起點。法官繼而指上述案例的被告人均沒有先獲取性服務才行劫，而申請人則獲取了性服務而未有付款。他引用案例陸孝章(譯音)，認為應將刑期加至6½ 年來反映案情嚴重性。法官給予申請人一般的三分之一刑期扣減，判刑4 年4 個月。

Ground of Appeal
上訴理由

Counsel for the applicant, Mr Newman Wong, advanced only one ground of appeal. He had no objection to 6 years being adopted as the starting point in sentencing, but he argued that the Deputy District Judge had erred in principle in increasing the term of imprisonment from 6 years to 6 ½ years on the ground that the applicant had, before robbing the victim, used the sexual service she provided without making payment.
申請人代表王‍興‍偉大律師祇提出一項上訴理由。他對量刑起點是6 年無異議，但他指法官以申請人行劫前接受受害人提供的性服務而未有支付酬金為理由，將刑期由6 年提升至6½ 年，是犯了原則上的錯誤。

Mr Wong argued that the applicant’s act of not paying the victim did not constitute any criminal offence in law. As the service provided by the victim in the transaction was immoral, she was not entitled to make a civil claim against the applicant in court. Although there is the offence of Making off without Payment under 18(1) of the Theft Ordinance, 18(3) provides that ‘Subsection (1) shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable.’ Mr Wong argued that imposing a heavier sentence on the applicant because he did not pay for the service he had received was inconsistent with public policy. Although the Deputy District Judge found that the applicant should not have availed himself to the sexual service without making payment, to increase the term of imprisonment by half a year because of $100 was proportionately excessive. Mr Wong considered that the appropriate sentence was one of 4 years.
王‍大律師指申請人沒有付酬給受害人這行為，在法律上未有構成任何刑事罪行。由於受害人提供服務屬於不道德交易，她不能在民事法庭上向申請人申索。根據《盜竊罪條例》第 18C(1)條，是有「不付款而離去」此罪行，但18C(3)條列明「凡貨品的供應或服務的提供是違法的，或提供服務所須付款是不能夠依法追討的，則第(1)款概不適用。」王‍大律師指以申請人在獲得服務後沒有支付酬金而加重刑罰是與公共政策有所違背。縱使法官認為申請人不應該在不付酬金之下使用有關性服務，為了$100酬金而將刑期提高半年，在比例上亦屬過高。王‍大律師認為恰當的刑期是4 年。

Reply of the Respondent
答辯人回應

Miss Chiu for the Prosecution accepted that the reason given by the Deputy District Judge for increasing the sentence was not appropriate. But she argued that in this case, the applicant posed himself as a customer, pretended to negotiate the price with the victim and exploited the vulnerability of her position to satisfy his selfish desire first before robbing her when she forgot to keep up her guard; he planned his actions and committed the offence with premeditation. The two sentence-enhancing elements, namely, acting with premeditation and exploiting the vulnerable, were present in this case, and in view of the facts of the case, she considered that adopting 6 ½ years as the starting point of sentence was not manifestly excessive.
答辯人代表招‍秉‍茵檢控官接納沈‍法官的加刑理由不當，但她指在本案而言，因為申請人訛稱為顧客，假裝與受害人議價，利用受害人工作上的弱點，先滿足自己的一己私慾，待受害人疏於防範才進行搶劫，申請人的行為是有計劃及在深思熟慮下犯案。本案有「預謀」及「剝削易受傷害人士」此兩項加刑因素和看到本案案情，她認為6½ 年的量刑起點是並非明顯過高。

Miss Chiu also argued that the amount of the reward did not affect the seriousness of the case or the extent of the sentence enhancement.
招‍律師亦指酬金多少並不影響本案嚴重性或加刑幅度。

Discussion
討論

Firstly, as Deputy District Judge Sham had expressly pointed out, although the applicant was equipped with a piece of electric wire with the intent to tie up the victim, this case did not concern Armed Robbery.
首先，正如沈‍法官明確指出，雖然申請人帶備電線以圖綑綁受害人，但本案並不涉及「持械行劫」。

The Court of Appeal has pointed out clearly that the work nature of sex workers makes them vulnerable targets for robbers. Thus the Courts will pass deterrent sentences to ensure that they are free from being bullied; see the case of Lai Kwok Fai.
上訴庭已清楚指出性工作者的工作性質令她會容易成為劫匪的搶劫行動目標，法庭會判處阻嚇式的刑罰，保證她們免受欺淩：黎國輝案例。

The Deputy District Judge had referred to two ‘one-woman brothel’ robbery cases in which weapon was used: scissors were used in the case of Lai Kwok Fai and chopper was used in the case of Cheng Fuk Wah. The sentencing starting points were 6 ½ years and 7 years respectively.
法官考慮的兩宗「一樓一鳳」劫案均涉及使用武器：黎國輝一案被告用剪刀，而鄭福華一案被告用菜刀。量刑起點則分別為6½‍年及7‍年。

In this case, the applicant tried but failed to tie up the hands and neck of the victim with electric wire. In the end, he hit her on the head with a remote control device, causing her injuries.
在本案，申請人試圖使用電線綑綁受害人雙手及頸部不果，最終用遙控器打傷受害人頭部，令她受傷。

As far as the seriousness of the case is concerned, though the Court could make reference to the cases of Lai Kwok Fai and Cheng Fuk Wah, the facts of this case are in fact not on a par with those of the above-mentioned cases. The fear or potential harm that a victim threatened with scissors or chopper is exposed to is far greater than one who suffers the attempt of being tied up with a piece of electric wire and hit on the head with a remote control device by the robber. On the other hand, the applicant had tried to tie the neck of the victim with electric wire; this exposed her to the risk of sustaining grievous bodily harm.
以案情嚴重性而言，雖則法庭可參考黎國輝及鄭福華兩宗案例，但本案案情實不能與上述案例相提並論。一名受害人在剪刀或菜刀威脅下所受的驚恐及可能被傷害程度，遠遠超過被賊人試圖用電線將她綑綁及用遙控器襲擊頭部。但另一方面，由於申請人曾經試圖用電線綑綁受害人頸部，此舉是有機會令受害人身體受嚴重傷害。

Citing the case of Luk Hau Cheung, Deputy District Judge Sham stated that not paying for the service rendered to him was something ‘for which a (the) defendant has not been charged or convicted’ and hence a ground for enhancing the sentence.
沈‍法官引用案例陸孝章一‍案，指申請人使用服務後未有付款是一項「未有因為該等事項而被加控罪行或者定罪」的事項，因此構成加刑理由。

The applicant’s failure to pay for the sex service provided to him after using it does not constitute an offence at criminal law. The victim could not lodge a civil claim for it either. It was inappropriate for the Deputy District Judge to rely on the case of Luk Hau Cheung. Therefore, it was wrong in principle to increase the sentence by 6 months.
申請人在使用受害人的性服務後未付酬金，在刑法上並不構成罪行，受害人亦不能經民事法庭作出申索，法官引用陸孝章一‍案是不當的。以此理由加刑6 個月是有違原則。

Taking into account all the facts of this case, in particular the fact that the applicant had attempted to tie the neck of the victim with electric wire, 6-year is an appropriate starting point. Allowing the applicant the usual 1/3 discount, the sentence imposed is one of 4 years. Though the difference between 4 years 4 months and 4 years is only 4 months, an error in principle made when passing sentence should nevertheless be rectified even when the difference is not great.
考慮了本案的所有案情，尤其是申請人試圖以電線綑綁受害人頸部此情節，6 年此量刑起點是恰當的。在給予申請人三分之一刑期扣減後，判刑是4 年。雖然4 年4 個月與4 年祇是相差4 個月，但當法官在判刑時犯了原則錯誤，即使刑期分別不大，亦須糾正。

For the reasons given above, this Court grants leave to appeal, and treating this hearing as the appeal itself, we allow the appeal, the 4 years and 4 months’ imprisonment is set aside and substituted by 4 years’ imprisonment.
基於上述理由，本庭批准上訴許可，並視之為正式上訴。上訴得直，4 年4 個月的刑期撤銷，改判監禁4 年。

Mr Newman Wong, instructed by Au & Associates, assigned by Director of Legal Aid for the Applicant
申請人：由法律援助署委託李炳剛區紹恩律師行轉聘王興偉大律師代表

Miss Samantha Chiu Ping Yan, of the Department of Justice for the Respondent.
答辯人：由律政司檢控官招秉茵代表香港特別行政區