HKSAR v. WU MAN

CACC 630/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Keith J. (giving the judgment of the court):

Introduction

1. On 8th December 1998, the Applicant was convicted by Judge Gill in the District Court on a charge of robbery. He had pleaded not guilty. In addition, he pleaded guilty to a charge of remaining in Hong Kong without the lawful authority of the Director of Immigration. On the following day, he was sentenced for these offences. He was sentenced to 6 years' imprisonment on the charge of robbery and to 1 year's imprisonment for the immigration offence. 6 months of that term was ordered to be served consecutively to the sentence imposed on the robbery charge, and the other 6 months was ordered to be served concurrently with it. The Applicant therefore received a global sentence of 6 years and 6 months. He now applies for leave to appeal against his conviction and sentence.

The Applicant's conviction

2. The prosecution's case against the Applicant on the robbery charge was based entirely on the evidence of identification given by the victim of the robbery. She claimed that she had been approached by two men when she had been walking along a path by the sea near Riviera Garden in Tsuen Wan one night at about 10.00 p.m. One of the men grabbed her around the neck and held a knife to her throat. The other man ransacked her handbag. Her mobile phone and cash were stolen. Less than two weeks later, the victim picked out the Applicant at an identification parade from a line-up of 14 men. She identified him as the robber who had ransacked her handbag. The Applicant admitted being in the vicinity at the time, but he claimed to have taken no part in the robbery. His evidence was that he had not even gone to the path where the victim was robbed.

3. In the light of that evidence, the issue which the judge had to decide was one of identification. In his Reasons for Verdict, the judge said:

"... though the lighting was dim, though it was raining, though [the victim] was clearly and understandably scared stiff, the [assailants] were very close to her and she was not so distraught that her eyes and brain had ceased to function, and hers was not a fleeting glimpse. She had both assailants right before her eyes for several minutes."

The judge did not overlook the fact that at the time the victim thought that her assailants might be Vietnamese (whereas the Applicant is not), and that her assailants spoke to her in Cantonese, albeit with an accent (whereas the Applicant claimed to speak no Cantonese at all). But there are no grounds for interfering with the judge's conclusion that, notwithstanding these factors, the victim's identification of the Applicant as one of her assailants was entirely reliable.

4. The Applicant has told us today that although he did not participate in the robbery, he was indeed present at the time when the robbery took place. He conceded that that is completely different from what he told the judge at the trial. We note what the Applicant has told us, but we can only go on his evidence at the trial. Reviewing the evidence which was placed before the judge by both the prosecution and the defence, we cannot say that there are grounds for interfering with the judge's conclusion.

5. As it was, the Applicant was arrested two nights later in the company of two other men. That evidence was before the judge. One of the men had pleaded guilty to the robbery. The judge knew that as well. It is arguable that that man's plea of guilty to the robbery was not admissible in the trial of the Applicant, but it is plain from the judge's Reasons for Verdict that the judge did not take that evidence into account. The only evidence which he took into account was the evidence of the victim. In the circumstances, there are no grounds for setting aside the Applicant's conviction for robbery, and his application for leave to appeal against his conviction must be refused.

The Applicant's sentence

6. The judge took 6 years' imprisonment as his starting-point for the offence of robbery. He expressly had the case of Mo Kwong Sang [1981] HKLR 610 in mind. That established that a sentence of 5 years' imprisonment was appropriate for a robbery where a knife was displayed to the victim. Aggravating factors which might justify an increase in that sentence include the case where more than one robber is involved. In our judgment, the judge was entitled in the circumstances to take 6 years' imprisonment as his starting-point on the charge of robbery. The only thing which could be said in the Applicant's favour was that he had no previous convictions. But in Mo Kwong Sang the Court held that little credit should be given for the previously clear record of anyone who takes part in an armed robbery.

7. As for the immigration offence, the judge correctly took 15 months' imprisonment as his starting-point in accordance with the tariff laid down in So Man King [1989] 1 HKLR 142. As I have said, he reduced the term to 12 months' imprisonment and ordered that 6 months of the term be served concurrently with the 6 years' imprisonment imposed on the robbery charge. He did so "to avoid sentences which might otherwise be excessive in length overall". The Applicant has no legitimate ground for complaint about this approach. The sentences imposed were not unduly excessive, whether viewed individually or cumulatively. For these reasons, this application for leave to appeal against sentence must be refused.

Time served

8. This application has been sufficiently unmeritorious to justify making a contrary direction under section 83W(1) of the Criminal Procedure Ordinance (Cap. 221). Accordingly, we direct that 3 months of the time during which the Applicant has been in custody pending the determination of this application shall not be reckoned as part of the term he has served towards his sentence.