HKSAR v. LI CHI FU

CACC 59/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 59 OF 1999

(ON APPEAL FROM CRIMINAL CASE NO. 1182 OF 1998)

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J U D G M E N T

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Nazareth, V-P (giving the judgment of the Court) :

1. The applicant was convicted on his own pleas of guilty by His Honour Judge Sweeney in the District Court on three charges. The first was of robbery, the particulars being that on 25 September 1998 at House 15 , Buena Vista, No. 7 Pik Sha Road, Tseung Kwan O, in Hong Kong, he robbed Hui Hon-lam cash of about HK$3,500. The second charge was of burglary in that on 27 September 1998, two days later, at the same place and same house, he entered with intent to steal. The third charge was of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully. The judge convicted him and sentenced him to a total of 6 years imprisonment, four years for the robbery charge; two years for the second charge of burglary, to run consecutively; and 15 months for the third charge, to run concurrently, making a total of six years. In respect of the first two offences he seeks leave to appeal against sentence.

2. The facts are unusual at least in regard to one feature. The victims were Hui Hon-lam and his wife who lived in the house where the offences in the first two charges were committed. On the day of the first offence, the night of 24/25 September, the wife returned home at about 9.30 pm and could not open the main door. She informed Hui and they went home together at about 1.30 am in the morning. Hui told his wife to wait outside while he went in to check. When he got into the master bedroom, he found a male person, the applicant, lying on the bed. Hui attempted to run away but was chased by the applicant and stopped on the ground floor. The applicant threatened Hui with a fruit knife which belonged to Hui and demanded money. The husband gave him HK$3,500. The applicant then made good his escape, taking the knife with him.

3. The police were called but nobody could be found. However, some fingerprints were found.

4. Proceeding to the second charge, about 1.20 pm on 27 September, Hui and his wife were in the master bedroom of their house when they heard a noise outside. They noticed a shadow of a person moving outside and reported it to the police. The police arrived. They searched the house and ultimately found the applicant hiding in a toilet in a servant's room on the ground floor. When the applicant emerged from the toilet, the knife was found in there. Hui immediately recognised the applicant as the man who had robbed him two days before, and also the knife. The fingerprints, in due course, were established as his.

5. We turn now to the grounds upon which the applicant relies. In his written notice of appeal for leave to appeal against sentence, he relies first on what he says was the bitter hatred the judge bore against illegal immigrants from the mainland. In support of that complaint, he says, the judge observed that all illegal immigrants from the mainland alleged that they came to get a job in Hong Kong when they were arrested. He says that these words uttered by the judge revealed the bitter hatred the judge bore against illegal immigrants.

6. We do not propose to dignify this absurd allegation with any detailed consideration. It is not uncommon for illegal immigrants from the mainland after they are arrested to allege that they have come here for a job. That is commonly observed in the courts. There is nothing in the record which suggests any bitter hatred of illegal immigrants.

7. His second ground is that the judge appeared to be impatient and gave insufficient consideration so that his judgment was affected. In support of this he made three allegations. First that prosecution counsel put forward some document to the judge and gave a copy to the interpreter. He claims that before the interpreter had finished interpreting it, the judge signalled the interpreter to stop without an explanation. That, he says, indicates the judge's impatience. There is nothing in this complaint. It is not uncommon for judges to stop further evidence being led that is not material. Moreover, he was legally represented. There is nothing in this complaint also.

8. Second, he says that while his legal representative was seeking to give the family and personal background to obtain the sympathy of the court on humanitarian grounds, the judge repeatedly interrupted his legal representative. The judge, he says, then adjourned the matter for 20 minutes and later proceeded to deliver his judgment without giving his legal representative an opportunity to complete those grounds.

9. Before us today, the applicant has repeated that complaint and has been given a full opportunity of stating what those humanitarian background matters were. It is convenient to deal with them here. What he says is that he comes from a village in the mainland, has no education and it is very difficult for him to find a job; even when he has found a job he obtains very little money. He is the only bread winner in the family. The parents are very old. He mentioned the age of 60. However, they have difficulty looking after themselves, he says. After he came to Hong Kong, they have had to take a loan.

10. We have to say that having heard the nature of the offence, we are not surprised that the judge found it unnecessary to pursue this line of evidence.

11. Finally, as the third reason why he says the judge was impatient, he complains that when the trial concluded, the judge asked him if he understood the sentence. Then he signalled the police officers to take him down without asking him whether he wanted to raise any questions in court. It is not the procedure of courts in Hong Kong after defendants are sentenced to ask them any such question. This point is yet another indication of the wholly unmeritorious nature of what the applicant has raised before us.

12. There is plainly nothing in his grounds. The sentence was heavy but it was entirely deserved and entirely proper. The applicant does not appear to appreciate what serious offences his were. It is a very serious matter to enter a dwelling house, particularly at night, arm oneself with a knife, threaten an occupant with the knife and to have the audacity after two or three days to return to the same place, and furthermore then to suggest that the return visit happened by mistake in that he did not know it was the same house.

13. Leave to appeal against sentence is refused.

14. Having regard to the total absence of any merit whatsoever in any of his grounds, we accordingly disallow three months being counted towards his sentence. The result is the applicant will serve three months extra.