HKSAR v. KWONG KWOK PUI AND ANOTHER

CACC 612/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 612 OF 2002

(ON APPEAL FROM HCCC 46 OF 2002)

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J U D G M E N T

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Ma JA (giving the judgment of the Court):

1. On 2 December 2002, the 1st and 2nd Applicants (aged respectively 25 and 23) were convicted, together with another accused, by Deputy High Court Judge Wright of robbery. All three had pleaded guilty to the charge. They were each sentenced to 5 years 4 months' imprisonment in relation to the robbery. In the case of the 2nd Applicant, his sentence was to run consecutively to a term of 2 years' imprisonment he was serving. The 3rd accused was also convicted of another count of robbery.

2. By notices of application dated 10 December 2002 and 11 December 2002, the 1st and 2nd Applicants respectively applied for leave to appeal against their sentences. The 3rd accused also applied for leave to appeal against sentence but he has since abandoned his application.

3. The relevant robbery took place at about 3.40 a.m. on 10 August 2001 when the two Applicants and the 3rd accused accosted a man and a woman near a hotel in Yau Ma Tei. A robbery was committed in which various items and some cash were taken. In the course of the robbery, the man was subjected to violence. He was grabbed by the neck and had a sharp object pressed against his throat. When the man tried to remove the sharp object from his throat, his thumb was cut. Another robber then punched and kicked the man over 10 times. All this took place in front of the woman who must have been frightened by the whole ordeal. Both the man and the woman were robbed. The man sustained the following injuries: abrasions over his face and neck, a 1 cm laceration over his right cheek, and a 2 cm laceration over the base of his left thumb.

4. The learned Judge took 8 years as the starting point for the robbery. He considered this to be appropriate in a case where real violence (as the learned Judge put it) was used and one of the robbers was in possession of a weapon (probably the folding pocket knife that was found on one of the accused). In the circumstances of the case, the robbery was plainly a joint venture and each of the participants was equally liable. The Judge also took into account the previous convictions of the two Applicants. The 1st Applicant has had 10 previous convictions, 6 for theft and 3 for crimes of violence. The 2nd Applicant also had 10 previous convictions, one for robbery, one for assault and 7 or 8 for burglary or theft. The Judge said this in passing sentence, "Each of you is a man of violence and no stranger to stealing from others."

5. The 8-year starting point was reduced to 5 years 4 months on account of the guilty pleas.

6. In the present applications for leave to appeal, both Applicants submit essentially that their sentences were too severe. The 2nd Applicant has, in his Grounds of Appeal and in a letter dated 13 April 2003, said that he ought to have been tried in the District Court where the maximum sentence is 7 years. He also mentions various personal matters in the letter. This morning the 1st Applicant has also submitted that his trial should have been in the District Court. The 2nd Applicant has also shown us a newspaper clipping in which reference is made to a case in which a Court of First Instance judge had made remarks that the case before him could perhaps have been tried in the District Court. Insofar as the clipping is accurate, the case reported there involved different offences and different circumstances. The 2nd Applicant also complains that his sentences should not have been consecutive or at least partially so.

7. We do not regard the sentences passed by the learned Judge as being manifestly excessive or wrong in principle at all. They reflect the seriousness of the circumstances of the robbery that have just been outlined. The Judge has not erred in any respect. He referred to R v Mo Kwong Sang [1981] HKLR 610 in sentencing the Applicants and he was right to do so. We emphasise that this was a robbery that involved violence. It was appropriate that the trial took place in the High Court. As to the consecutive nature of the sentences passed on the 2nd Applicant, this was also appropriate.

8. We dismiss both applications for leave to appeal.