Hon Barnes J (giving the judgment of the Court):
原訟法庭法官張慧玲 ：

The Applicant Wong Ching Chiu was the 3rd defendant at trial. He and two other persons (D1 and D2) were jointly charged with one count of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong. The Applicant pleaded not guilty to robbery but admitted to the wounding of the victim as particularised in the charge. The Applicant was convicted after trial and was sentenced to 5 years’ imprisonment.
申請人黃証潮原是第‍三被告人，他與第‍一及第‍二被告人一同被控一‍項「搶劫」罪，違反香港法例第 210 章《盜竊罪條例》第 10 條。申請人否認「搶劫」罪，但承認控罪中所指的傷人情況。經審訊後，申請人被判罪名成立，被判處監禁5 年。

The Applicant applied to the Court of Appeal for leave to appeal against conviction and sentence, but his application was dismissed by Yeung JA on 13 December 2006. The Applicant now applies to the Court of Appeal for leave to appeal against sentence.
申請人向上訴法庭申請針對定罪及判刑的上訴許可，有關申請於2006 年12 月13 日被上訴法庭法官楊‍振‍權拒絕。申請人再向上訴法庭提出不服判刑的上訴許可申請。

Prosecution case
控方案情

Mr Ng, the victim herein, was the proprietor of a boutique. One month prior to the offence, D1 became an employee of Mr Ng and, as such, came to know that there were frequent movements of large sums of cash in the course of business of the boutique, that a “reconciliation” of accounts would be carried out every week, and that it was Mr Ng’s usual practice to deposit the cash into a bank near his boutique every Tuesday. D1 had actually helped Mr Ng make deposits.
案中受害人吳‍先生為時裝店東主。在案發前一‍個月，第‍一被告人受僱於吳‍先生，因而知悉店舖在經營中經常有大量現金出入，每星期會進行「對數」；而吳‍先生亦慣常每逢星期二將現金存入店舖附近的銀行。第‍一被告人曾協助吳‍先生將錢存入銀行。

D1 informed her cohabitee (i.e. D2) of the details of such deposits. D2 told D1 that he was going to rob Mr Ng with other accomplices.
第‍一被告人將該入數詳情告知她的同居男友(即第‍二被告人)。第‍二被告人則告知第‍一被告人他會與其他黨羽一起打劫吳‍先生。

On the morning of the day of the offence, Mr Ng went to the bank to make a deposit, carrying with him a black carrier bag that contained $400,300 cash, crossed cheques in a total sum of $54,000 and some personal belongings. After Mr Ng had left, D1 received a call from D2 and told him Mr Ng’s movements. When Mr Ng walked past No. 666 Castle Peak Road and was about to go to a newspaper stand to buy newspapers, he was suddenly punched on the head by the Applicant and another person who is still at large. The punch caused him to fall on the ground, and his black carrier bag was snatched. The Applicant and the said other person then boarded a car driven by D2 and left the scene. The Applicant was subsequently given $60,000. Mr Ng sustained injuries in the incident.
在案發當天早上，吳‍先生帶著載有400,300 元的現金、總值54,000 元劃線支票及一些個人財物的黑色孭袋往銀行入數。吳‍先生離開後，第‍一被告人接獲第‍二被告人來電，她便將吳‍先生行踪如實告訴第‍二被告人。當吳‍先生行經青山道666 號，準備前往一‍報紙檔購買報紙時，突然被申請人及另一‍在逃人士用拳頭襲擊頭部，令他跌在地上。他身上的黑色孭袋亦被搶去。兩‍人得手後乘坐由第‍二被告人駕駛的車輛離開。事後申請人獲分60,000 元。事件中，吳‍先生身體受傷。

Defence case
辯方案情

The Applicant elected to give evidence. He did not deny that he was one of the two persons who assaulted Mr Ng during the robbery, but he claimed that he merely helped someone hit Mr Ng and he did not witness Mr Ng’s black carrier bag being snatched. Subsequent to the incident, he was given $60,000 being “travelling and general expenses”.
申請人選擇作證。他不否認吳‍先生被劫時他是兩‍名襲擊者之一，但他指稱他祇是幫手打人，並沒有目睹吳先生的黑色孭袋被搶。事後他收取了60,000 元「車馬費」。

Grounds of appeal
上訴理由

In his written grounds of appeal, the Applicant said:
申請人在其書面上訴理由指稱 ：

In the High Court case cited by the lawyer who represented me, the victim was a woman who was dragged to a rear staircase, pinned down on the ground and assaulted. The case also involved two assailants, and the offence was committed in the evening. The District Court sentenced (the defendants) to 5 years’ imprisonment, and on appeal to the High Court the term was varied to 4 years. The High Court Judge also pointed out that the sentence for unarmed robbery should be 4 years, (not) 5 years. The aggravating factors in the above case were that the victim was a woman, the offence took place in the evening, she was dragged to a rear staircase where she was pinned down on the ground and beaten up, and there were two offenders. The aggravating factors in that case were more serious than those in my case. Judge Anthony Kwok took 5 years as the starting point by reason of the amount involved and the premeditated nature of the offence. However, the High Court Judge took 4 years as the starting point when the case involved more serious aggravating factors. Why is my case more serious?
「根据我代表律師提出嘅高等法院案例 ：事主係女性，被捉入後樓梯，係地下打，同樣兩名兇徒，時間係晚上；係區域法院判5年，上訴至高等法院判4年，高等法院大法官亦指出無武器下搶劫，刑期係4年而應該係5年。案例中嘅加刑條件事主係女性，時間係晚上捉入後樓梯落地下打。兩‍名兇徒，加刑條件方面係比我本人單案更嚴重。敦啟安法官指出因為金額同有預謀所以要以5年起步。但案例中加刑條件更多高等法院大法官指出應以4年為判刑點，何解我本人單案會更重？」

In his oral submissions, the Applicant stressed that the circumstances of the present case were not as serious as those of other cases, because the victims in the other cases were women who were assaulted, and the victim in one of those cases was even dragged to a rear staircase. In essence, the Applicant contended that the trial judge should not have taken 5 years as the starting point as he had not used any weapon in the case.
申請人在其口頭陳詞時亦強調指本案相比其他案例，案情不及它們嚴重，因該些案例涉及女性受害人及毆打受害人，更有一‍宗案例涉及將受害人捉到後樓梯。申請人的重點指基於他在案中沒有使用武器，故此，原審法官不應以5 年為量刑起點。

Reasons for sentence
判刑理由

9.In considering sentence, the trial judge rightly pointed out that the maximum sentence for robbery was life imprisonment. The judge took into account the cases of Mo Kwong Sang v. R. [1981] HKLR 610, R. v. Yau Kwok Tung [1987] HKLR 782 and HKSAR v. Ting Chiu [2003] 3 HKLRD 378. The Court of Appeal has said that the starting point for robbery committed in a public place without displaying any knife or dangerous weapon should be 4 years’ imprisonment, and that cases involving two or more robbers are more serious than cases involving one robber.
原審法官在判刑時，已正確指出就搶劫罪而言，最高刑罰為終身監禁。法官已參閱案例茆廣生（Mo Kwong Sang v. R.） [1981] HKLR 610, R. v. Yau Kwok Tung [1987] HKLR 782及HKSAR v. Ting Chiu [2003] 3 HKLRD 378。上訴庭曾指在公眾地方干犯搶劫罪，如劫匪沒有展示刀或其他危險武器，量刑的基準為4 年監禁；亦提及如劫案涉及多於一‍名劫匪，案情則會較單一‍劫匪為重。

10.The trial judge was well aware that no weapon was produced, used or displayed during the robbery. However, he took the view that the present case was more serious than other unarmed robberies. The amount of cash involved in this case exceeded $400,000. Even though some of the stolen money had been recovered, the victim still suffered a loss of over $340,000, which was unlikely to be recovered. Moreover, the present case involved an organised and premeditated robbery as opposed to an “opportunistic” crime in which the offender simply waited for an opportunity to commit an offence in a public place. The robbery in the present case was carefully planned, and a false vehicle registration plate was used as a cover-up. Violence was used during the robbery and the victim suffered pecuniary losses as well as physical injuries.
法官清楚知悉在本案行劫期間並沒有出示、行使或展示任何武器，但他認為本案較一般沒有使用武器的劫案更為嚴重。本案涉及現金金額多達四十多萬‍元；即使不計已「起回」的部份贓款，損失仍高達三十四‍多萬元，有關損失金額肯定難以追討。再者，本案是一‍宗有組織、有預謀的搶劫案，有別於一些祇是在公眾地方伺機行事、屬「機會主義」的犯案。案件是經過精心策劃，行事期間有使用假車牌作掩飾；在搶劫過程中有使用武力，令受害人除蒙受金錢損失外，身體亦受傷。

11.Having considered the above factors, the trial judge held that an appropriate starting point was 5 years.
法官在考慮了上述的種種因素後，認為恰當的判刑起點為5 年。

12.In respect of the Applicant’s case, the trial judge pointed out that the three defendants arrived at the scene together and committed the offence. D2 was the driver, and the three of them were in fact jointly committing the offence, for which they all had to be liable. The Applicant did use violence. Even though he did not physically snatch the victim’s property, his culpability at law was similar to that of the other defendants. The trial judge noted that the Applicant had pleaded not guilty and had not shown any remorse, and in the absence of any valid mitigating factor, the trial judge sentenced the Applicant to 5 years’ imprisonment.
就申請人方面，法官指三‍名人士一同到達現場干犯搶劫，第‍二被告人負責駕車，三‍人實是一同干犯搶劫罪，要承擔法律責任。申請人有使用武力，即使他不是親手搶去受害人財物的人，在法理上他的罪責與其他同犯相若。法官指申請人否認控罪、無悔意、沒有有效求情理由，故判處申請人5 年監禁。

Discussion
討論

13.Generally speaking, the starting point for robbery in a public place without displaying a knife or other weapon is 4 years’ imprisonment. Even though the present case did not involve an armed robbery, as the trial judge pointed out, there were a number of aggravating factors.
一般而言，在公眾地方干犯搶劫罪，如沒有展示刀或其他武器，量刑基準是4 年。本案雖非涉及持械行劫，但如法官所言，本案有令案情更嚴重的種種因素。

14.In HKSAR v. Ng Man Lung (吳文龍) CACC 451/2004, the applicant was convicted after trial on one count of robbery and was sentenced to 5 years’ imprisonment. The facts of the case revealed that a staff member of a jewellery company was robbed by the applicant and two other offenders in Causeway Bay when she was taking cash belonging the company to a bank to make a deposit. The applicant was caught at the scene and the stolen property was recovered. In determining the applicant’s application for leave to appeal against sentence, Cheung JA said:
在香港特別行政區訴吳文龍，CACC451/2004一‍案，案中申請人經審訊後被裁定一‍項「搶劫」罪罪名成立，被判監禁5 年。案情顯示一‍名珠寶公司職員攜帶屬於公司的現金前往銀行存款時，在銅鑼灣遭申請人及另外兩‍名匪徒搶劫。申請人當場被捕，起回失物。就申請人針對刑罰的上訴許可申請，上訴法庭法官張澤祐指 ：

… This is a premeditated street robbery. The Applicant is an illegal immigrant and he carried out a robbery with two other robbers in broad daylight outside the busy Times Square against the victim who was carrying cash to the bank. It is obvious that the offence was carefully planned and executed and not committed out of momentary greed. Violence was used against the victim. The robbers grabbed her by the neck and punched her face and head. The sentence imposed in the present case is appropriate and in line with the Court of Appeal’s sentencing guideline for robbery. The application for leave to appeal against sentence is dismissed.
「…… 本案是一宗有預謀的街頭搶劫案，申請人是一名非法入境者，而又聯同其他兩名劫匪在光天化日，行人眾多的時代廣場外，糾黨行劫一名攜有現款前往銀行的受害人。這顯示本案的劫匪不是出於一時貪念，這宗劫案是經過深思熟慮及有計劃的行動。受害人亦遭受到暴力對待，匪徒箍着她的頸項及用拳頭襲擊她的面部及頭部。本案的刑期是恰當的，亦符合上訴法庭頒發的有關搶劫罪刑期的指引。本庭駁回針對刑期的上訴許可申請。」

15.The facts of the present case were in fact similar to those in Ng Man Lung except that, when compared with Ng Man Lung in which the robbery was committed by an illegal immigrant, the robbery in the present case was better-planned.
本案案情實與吳文龍相若，但相對吳文龍的非法入境者而言，本宗劫案的計劃更週詳。

Conclusion
總結

On the facts of the present case, the sentence imposed on the Applicant is appropriate and consistent with the Court of Appeal’s sentencing guideline for robbery. The application for leave to appeal against sentence is accordingly dismissed.
以本案案情而言，刑期恰當，亦符合上訴庭頒發有關搶劫罪刑期的指引。本庭駁回針對刑期的上訴許可申請。

Hon Tang VP:
上訴庭副庭長鄧國楨 ：

17.I agree.
我同意。

Mr Richard Ma, Senior Government Counsel, for the Respondent.
答辯人：由律政司高級政府律師馬游龍代表。

The Applicant in person.
申請人：無律師代表，親自出席。