HKSAR v. LAW KIT

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JUDGMENT

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Mayo JA giving the judgment of the Court:

1. The Applicant sought leave to appeal against the sentence of 6 years' imprisonment imposed upon him for robbery after he pleaded guilty to the offence. This sentence was ordered to be served consecutively to a sentence of 15 months' imprisonment imposed upon him for remaining in Hong Kong without the permission of the Director of Immigration.

2. On 13th May last the Applicant filed a notice of his abandonment of his appeal. He now seeks leave to withdraw this notice.

3. The Applicant has set up in some detail what he claims to be the circumstances of the case and particulars of his family background.

4. Suffice it to say that a number of the 'facts' he refers to are considerably at variance with the agreed facts upon which the sentencing Judge passed sentence.

5. According to the agreed facts the Applicant and another man Mr. Wong Yuk came to Hong Kong as illegal immigrants. As they wandered over the hills they came upon an old air rifle which they picked up. When they got to a main road, they hailed a taxi and directed the driver to take them to an address at Tai Po.

6. The taxi driver, who suspected that they were illegal immigrants told them that there might be a road block ahead.

7. Wong Yuk demanded money from the taxi driver while the Applicant held the air rifle. This frightened the driver who gave Mr. Wong HK$30 on condition that he and the Applicant got out of the taxi. The driver reported the incident to the police and shortly after this the Applicant was arrested with the air rifle. Mr. Wong succeeded in making good his escape.

8. Although this is not stated in the Applicant's letter, we entertained an application for leave to appeal against sentence from Mr. Wong who was subsequently caught and sentenced to six years' imprisonment. On considering the matter as a whole and for the reasons given in our judgment we allowed the application and reduced Mr. Wong's sentence by a year. The Court advised the Applicant of this and this appears to have prompted the present application.

9. For the reasons we gave in our judgment in Mr. Wong's case we did not regard this as the most serious case of its type. In particular we felt that the sentencing Judge, Wong J, did not take into account the fact that the Applicant was serving a sentence of imprisonment at the time.

10. In all the circumstances we feel that the interests of justice would be served by making a similar order in this case to the one we made for Mr. Wong and order that one year of the sentence should be served concurrently with the term he was already serving.

11. To achieve this we grant leave for the notice of abandonment to be withdrawn and treating his application for leave to appeal against sentence as the appeal we make an order that one year of the sentence imposed on the robbery count be served concurrently with the sentence of 15 months' imprisonment for remaining in Hong Kong without the permission of the Director of Immigration. The overall effect of this is that the Applicant will now serve a total sentence of 6 years 3 months' imprisonment. The appeal succeeds to this extent.