NG SHING LAI v. R.

IN THE COURT OF APPEAL

1996, No. 185
(Criminal)

----------------------

J U D G M E N T

----------------------

Ching, J.A. (giving the judgment of the Court):

1. The applicant was convicted on his own plea to one charge of robbery. He was sentenced to imprisonment for two years and eight months and now applies for leave to appeal against that sentence.

2. The facts were agreed in the Court below. At 0150 hours on the morning of 18th June, 1995, Madam Choi Siu-ling was returning to her home on the 25th floor of Tai On Building in Shaukeiwan Road. After she had entered the lift the applicant also entered and pressed the button for the 28th floor. When the lift reached the 25th floor and the doors opened, the applicant blocked her exit and declared robbery. He snatched from her two gold bracelets and a gold necklace with a pendant. The bracelets fell to the floor and the necklace became entangled with her handbag. He then tried to snatch her watch but failed. He grabbed her handbag and she resisted but he took from it her wallet containing $750, her identity card, a Standard Chartered Bank Money Link Card, an address book and some personal cards. He also took her mobile telephone. The lift doors closed and the lift recommenced its ascent. When the lift stopped again and the doors opened he picked up the bracelets from the floor and fled. She raised a hue and cry and bravely chased him but he made good his escape. Five days later a man telephoned her and said that the mobile telephone had been placed in the refuse room on the 26th floor of the building. She recovered it. On 13th July, 1995, he was arrested. He denied the offence but on the next day he admitted it and said he had returned the mobile telephone. Nothing else has been recovered.

3. The Judge below adopted a starting point of four years' imprisonment after trial. This was justified, see Attorney General v. SHEK Sui-tai [1989] 1 H.K.L.R. 178 and if he had had a weapon the starting point could have been six years, see MO Kwong-sang v. R. [1981] H.K.L.R. 610. The Judge took into account the plea of guilty, the fact that the applicant's girlfriend was pregnant and what he described as being a small degree of violence. On the other hand, the applicant has four previous convictions beginning in 1988, being assault occasioning actual bodily harm for which probation, compensation and costs were ordered, handling stolen goods for which community service and costs were ordered, common assault and blackmail for which detention in a Training Centre was ordered and, finally, possession of an offensive weapon for which he was again sent to a Training Centre. The Judge below took the view, rightly, that the applicant had been given all these opportunities to rehabilitate himself but had taken no advantage of them. The Judge reduced the sentence by one third to arrive at a figure of two years and eight months.

4. Before us the applicant pleads that his girlfriend is pregnant, has no place of abode and is not financially strong enough to take care of her son. The son is in the care of others and will soon have to be found a new place. His mother suffers from an illness and the family needs him to take care of them. It has been said many times before that while one has sympathy for the innocent people who will suffer through the incarceration of someone like the applicant these are not matters which carry any weight. He says that he was not sober at the time of the robbery but that is not a mitigating factor. The applicant also repeats his plea that he returned the telephone and co-operated with the police. These were matters that were adequately taken into account by the Judge. He adds that the victim was not hurt but it remains that she must, however, have been very frightened. He offers to make restitution but how he intends to do so is unknown. There are other personal matters which he mentions but which also carry no weight.

5. We can see no merit in this application and it is dismissed.