HKSAR v. YEUNG SANG

CACC449/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.449 OF 2003

(ON APPEAL FROM DCCC 569 OF 2003)

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1. The applicant was convicted on 25 September 2003 by His Honour Judge Day in the District Court of one charge of robbery and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was sentenced on the same day to five years' imprisonment in respect of the robbery charge and 15 months' imprisonment in respect of the unlawfully remaining charge. The sentences were ordered to run consecutively. He now seeks leave to appeal his conviction in respect of the robbery charge and the sentence in respect of the charge of remaining in Hong Kong unlawfully.

2. The facts found by the judge were that at about 12:35 a.m. on 29 April 2003, a Miss Tsui was walking home along Lion Rock Tunnel Road outside Shatin Park. She was approached from behind by a man on a bicycle who blocked her way. The man produced a chopper and snatched her handbag. She was frightened and surrendered the handbag. The man fled on his bicycle over an iron bridge heading towards Lek Yuen Bridge and Miss Tsui reported the matter to the police. The handbag contained $5,608.80 in cash, being five $1,000 notes, one $500 note and one $100 note and some coins, together with a pink wallet, various bank cards, five McDonald cards, a mobile telephone and other property. So far the evidence is not in dispute.

3. Some minutes after Miss Tsui had been robbed, a police officer who was on patrol stopped the applicant at Lek Yuen Bridge. The officer testified that when he first saw the applicant he was cycling very slowly from the direction in which Miss Tsui had seen him disappear. He was stopped about 12 minutes after the robbery. He was cautioned and remained silent.

4. A second officer searched the applicant, and from his right front trouser pocket found $5,500 in five $1,000 notes and one $500 note. The applicant's wallet was in his right rear trouser pocket. In the rucksack he was carrying was found a pink purse containing a $100 note. The purse was later identified by Miss Tsui. In the purse were also found an EPS card, a credit card and various other cards in the name of Miss Tsui. These were also identified by Miss Tsui but she was unable to identify the applicant at an identification parade. Later the same day, a chopper, a mobile phone and a card holder were removed from under the Lek Yuen Bridge. Miss Tsui identified the telephone and the card holder as belonging to her. She also testified that the chopper was similar to that with which she was threatened.

5. The applicant chose to give evidence. He testified that he came to Hong Kong to seek medical treatment. He admitted sneaking into Hong Kong and said he was looking for Queen Elizabeth Hospital although he did not know the address. He said the money found on him, a total sum of $6,050, was intended to pay for his treatment. He said that he found an unlocked cycle and rode it slowly along the footpath. As he did so he saw a purse on the ground and picked it up without checking its contents and put it in his rucksack.

6. He denied robbing Miss Tsui. He testified to a clear record having been in Hong Kong for one day this being his first visit.

7. The judge disbelieved the evidence of the applicant and found him guilty of the charge of robbery.

8. In his homemade grounds of appeal the applicant firstly complains that the identification parade was of no effect. He was not identified by Miss Tsui and there is nothing in this point. He also complains of the identification of the chopper by Miss Tsui. She identified the chopper as similar to the one with which she was threatened and accordingly the judge placed no weight on that identification whilst noting that it had been found under the bridge with her property.

9. The applicant argues in his grounds of appeal that he was in view of the officers as he approached them and so he did not have the opportunity to discard the property and the chopper where they were found without them seeing him do so. The judge noted that some 12 minutes had elapsed between the robbery and the applicant being stopped by the police. He found as a fact that the point where the chopper and some of Miss Tsui's property were found was within an area between where Miss Tsui had lost sight of the robber and where he came into the view of the police.

10. The next ground of appeal relates to an inconsistency in the evidence of the searching officer. At first in court, he testified he found $5,500 in the left front pocket of the trousers of the applicant. Having refreshed his memory, he testified it was the right front pocket. This matter was before the judge and considered by him. He accepted it to be a simple mistake.

11. The last ground of appeal is that the money on the person of the applicant was $6,000 odd in five $5,000 notes, two $500 notes in Hong Kong currency and RMB200. We note that five $1,000, one $500 note and $100 note in Hong Kong currency were produced to the judge in court. We are satisfied that the judge fully addressed the matters raised before him, considered them properly and cannot in any way be criticised for the conclusions he reached.

12. There is nothing in these grounds of appeal. The application for leave to appeal the conviction is dismissed.

13. The applicant has also sought leave to appeal against his sentence of 15 months in respect of the charge of remaining in Hong Kong unlawfully without the authority of the Director of Immigration. That sentence was ordered to run consecutively with that of the five years on the robbery charge.

14. In court this morning he has also argued that the sentence he appeals ought not to run consecutively with that of the robbery charge. In R. v. Lam Ping Chun [1989] 1 HKLR 161, this court held the substantial element in sentencing in such a charge was the applicant's unlawful presence in Hong Kong which, in normal circumstances, merited a sentence of 15 months' imprisonment after plea. In that regard, the court said :

".... Only a few days ago, in R. v. So Man King, Mag App No.408 of 1988, having been referred to the principal authorities dealing with offences against regulation 12 and with the related offences of using a forged identity card and of landing or remaining unlawfully in Hong Kong, all of which can be conveniently taken together as 'immigration offences', we noted that the substantial element in sentences passed for all three offences was the defendant's unlawful presence in Hong Kong, which in itself, in normal circumstances, merited a sentence of 15 months' imprisonment; .... We reiterate yet once again, that sentencing for these offences is intended to have a deterrent effect."

No complaint can be made in respect of the sentence of 15 months' imprisonment imposed by the judge.

15. We have considered whether the totality of the sentence warrants the making of the sentence in respect of the remaining in Hong Kong unlawfully concurrent or partially consecutive with the sentence on the robbery charge. This court has said that where a person comes to Hong Kong unlawfully and uses the opportunity to steal or to rob then the sentence in respect of remaining unlawfully ought to be one which is consecutive to the sentence involving the stealing or the robbery. There is nothing in the argument that the sentences should be either concurrent or partly consecutive and the application for leave to appeal against sentence is dismissed.