HKSAR v. LAN SIU FU

CACC 20/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 20 OF 1999

(ON APPEAL FROM DCCC 1301/1998)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The Applicant who was D2 at the trial below in the District Court before Deputy Judge Thomas pleaded guilty to robbery and being in Hong Kong without the permission of the Director of Immigration. He was sentenced to a total of 4 years 3 months imprisonment and seeks leave to appeal against the sentences.

2. According to the agreed facts the victims were a man aged 44, his wife aged 42 and her elder sister. They were walking along a path near the Fung Tei Light Rail Station. They were surrounded by a group of men. One of the men was holding a chopper, and the others held pipes and what appeared to be a small tree trunk. The chopper was held to the man's neck and the ladies were made to kneel on the ground. They were all relieved of their personal possessions. These included identity cards, cash, credit cards, two watches, a necklace and two bundles of keys. All of the victims suffered minor injuries which were treated in hospital.

3. Two of the men including the applicant were caught shortly afterwards. It transpired that the applicant was an illegal immigrant. At the trial below the applicant only changed his plea after it became apparent that his co-accused was prepared to testify against him.

4. The Judge adopted a starting point of 5 years imprisonment for the robbery. He gave the applicant a 25% discount for his late plea thus making a total of 3 years 9 months imprisonment. He passed the usual 15 months sentence for the immigration offence and ordered that 6 months of the sentence should be served consecutively to the sentence on the robbery count thus making up the sentence of 4 years and 3 months.

5. In his application the applicant complains that the sentence imposed upon him was excessive.

6. Before us, he claimed that he had made use of and he wasn't the master-mind. He also said that the victim who was injured had said that he was not the man who had assaulted him. He also claimed that he had not in fact snatched any property. However, this overlooks the fact that this was a joint enterprise in which he was an active participant. He also claimed that no lost property was found on him. This was contrary to the agreed facts. One of the victims identified coins which came from him and clearly he had been a possession of them.

7. The sentence was an extremely lenient sentence. In a case such as this there was no justification whatever for not making the sentence on the second charge wholly consecutive to the sentence on the first charge. However be that as it may we propose simply dismissing this application and ordering that all of the time which this applicant has spent in custody between the filing of the notice of application for leave to appeal and the hearing of the appeal will not count towards the sentences he is serving. We make this order as the application was totally devoid of merit.