HKSAR v. CHEUNG HAU YAN AND ANOTHER

HCMA 130/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 130 OF 2000

(ON APPEAL FROM NKCC 5664/1999)

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JUDGMENT

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Hon Lugar-Mawson J:

1. The two appellants, Cheung Hau-yan and Lau Shui-hun were convicted by Mr John Glass, Permanent Magistrate, at North Kowloon Magistracy after trial on 17 December 1999 of two counts of robbery. On 5 January 2000, Mr Glass sentenced each of them to serve 16 months' imprisonment on each count, to be served concurrently.

2. At trial, they were represented by counsel, Mr Freddy Woon. Neither gave evidence in their defence or called witnesses.

3. The defence case was run on discrediting the prosecution witnesses and relying on inconsistencies in their evidence to say that they were not credible witnesses. The magistrate, Mr Glass, found that although there were discrepancies in the evidence of the witnesses, they didn't go to the central issue of the case. As such, Mr Glass did not find the inconsistencies to have affected the credibility of either of the two prosecution witnesses, PW1 and PW2.

4. Mr Glass, as trial magistrate, had the opportunity of observing the witnesses give evidence in the witness-box and he found them to be credible witnesses. He was aware of the discrepancies in their evidence and dealt with them - and dealt with them properly - in his reasons for verdict.

5. As trial magistrate, Mr Glass was in a far better position than I am to assess the reliability and credibility of witnesses. I cannot fault his reasoning in his reasons for verdict and, in the circumstances, I should be slow in interfering with his findings, which I decline to do.

6. The two appellants' appeals against conviction are dismissed.

7. As to sentence, the robbery occurred at night at around 11 o'clock in the evening. One of the victims, PW1, was grabbed by the neck and both victims, PW1 and PW2, were threatened verbally and a bottle was pointed at them. Their names and addresses were taken down by the defendants.

8. This case could easily have been transferred to the District Court for trial and the defendants would have faced the possibility of receiving far higher sentences for robbery. Mr Glass felt himself constrained by the maximum sentencing powers available to him of two years' imprisonment. He took into account various matters he found to be mitigating of the defendants' circumstances and the offence, and very generously reduced the sentence from 2 years by 8 months to one of 16 months' imprisonment on each count. As both offences occurred at the same time, he quite rightly ordered that both sentences should be served concurrently. Those sentences are correct sentences. If anything, they are somewhat light. In no way could they be said to be manifestly excessive or wrong in principle. The two appellants' appeals against sentence are likewise dismissed.