HKSAR v. NG KAI KWONG

CACC 198/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 198 OF 1999

(ON APPEAL FROM DCCC 136 OF 1999)

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J U D G M E N T

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

1. On 18th March 1999, the applicant Ng Kai Kwong was sentenced by H.H. Judge Davies in the District Court to 3 years and 4 months for robbery and 8 months consecutive for remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. The applicant had pleaded guilty to these offences. He now seeks leave to appeal against sentence.

2. The facts he had admitted are simple. The applicant sneaked into Hong Kong in September 1998 by hiding himself under a container truck and remained in Hong Kong since then. On 7th December 1998 in the afternoon, the applicant came up to the victim while she was going back to her work place. He pointed a screw driver at her chest and declared "Robbery, don't move." He then snatched from the victim her handbag and fled. The victim ran after him and shouted for help. The applicant threw the handbag to the ground as he was running away but eventually he was caught by the victim and two passers-by who joined in the chase.

3. The Judge, following R. v. Mo Kwong-sang [1981] HKLR 610, adopted 5 years as the starting point for the robbery offence and he imposed a sentence of 3 years and 4 months after he allowed a 1/3 discount for the applicant's plea. He found no other mitigating circumstances. For the immigration offence, he imposed an 8 months consecutive sentence, this was reduced on account of the totality principle from the usual 15 months consecutive.

4. In his written grounds of appeal the applicant says he was forced by circumstances to come to Hong Kong to find work. He had no intention to commit the offences. For that, he should be given discount in sentence. He also says the screw driver was not as offensive a weapon as a knife and he had no intention to hurt the victim. He questions if the starting point of 5 years is justified.

5. In Mo Kwong-sang, the Court of Appeal suggested that "the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be 5 years."

6. In the present case, the applicant committed the robbery in broad daylight by pointing a 6 inch screwdriver at the victim's chest and was caught at the scene. It was not the applicant surrendering to the police. In these circumstances, a screw driver is as threatening as a knife to a vulnerable victim of a robbery and it was fortunate that no injury had been caused to her. The Judge rightly took 5 years as the starting point and gave 1/3 discount for the applicant's plea. However, as to the sentence on the immigration offence, we note that there were no particular circumstances to warrant a reduction from the usual 15 months consecutive sentence. While we agree that a total of 4 years for the two offences is neither wrong in principle nor manifestly excessive, we might add that the same total sentence of 4 years could be reached alternatively by imposing the usual 15 months for the immigration offence and ordering 8 months of this sentence to run consecutively to the sentence on the robbery. In this way, it would not have been necessary to find circumstances meriting a reduction from the usual 15 months. If for any reason, the sentence for robbery is set aside, the usual sentence of 15 months for the immigration offence would still remain to reflect the criminality of that offence. However, as we have consistently said, the sentence of 15 months in respect of the immigration offence should normally be imposed consecutively so that this applicant can regard himself as fortunate this his sentence was not longer by 7 months.

7. That being said, the application for leave to appeal against sentence has no merit and is dismissed. As I mention earlier since the application is without merit whatsoever, we order that 3 months of the time the applicant has spent in custody shall not count as part of his sentence.