HKSAR v. LAM PAN

CACC 77/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 77 OF 2000

(ON APPEAL FROM DCCC 891 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 15 February 2000, the Applicant (D1 at trial), following his pleas of guilty to attempted robbery and remaining without authority in Hong Kong before Judge Wright, was sentenced to a total of five years and three months' imprisonment against which he now seeks leave to appeal. His co-defendant (D2) abandoned in writing a similar application some days ago.

2. The facts on which the judge sentenced are amply covered in his sentencing remarks which effectively describe the attempted robbery as having occurred at about 2.00 a.m. on 12 August 1999. The victim was a lone female who happened to be an off-duty police officer who was waiting for a bus. Two men approached her. D2 threatened her with a screwdriver which he pointed at her body whilst his other hand took hold of her neck. He demanded money while D1 attempted to get some money out of the victim's pocket. When the victim struggled, she was stabbed although fortunately the injury caused was a minor one. D1 and D2 were, in due course, arrested. Both of them were illegal immigrants and both were later identified by the victim.

3. In passing sentence, the judge said:

"On the first practical occasion when it was possible for them to do so, they entered pleas of guilty. They are entitled to and will receive the usual one-third discount as a result of those pleas."

4. The judge rightly regarded the fact that D1 was of previous good character in Hong Kong as being of virtually no relevance. He then considered what was said by the Court of Appeal in R v Mo Kwong-sang [1981] HKLR 610 and cited a passage at page 611 which reads:

"We suggest that, in the future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years ... If any physical violence is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these .... the presence of more than one person in the group of robbers ...."

5. The judge considered that, whilst a higher starting point could be justified, a starting point of six years was appropriate for the attempted robbery with which we are concerned, and he then reduced that to four years to take into account the timely plea of guilty. He imposed a consecutive term of 15 months' imprisonment for the second charge in accordance with well established authority. On this aspect, the Applicant has today stated that a number of other inmates have been given for this offence a concurrent or partly concurrent sentence but, while that may be so, the general rule has always been that a sentence of fifteen months for this immigration offence, following a plea of guilty, should normally be served consecutively to any other sentence for an offence which has been committed.

6. The Applicant in his grounds of appeal has stated that he believes he has been sentenced too heavily for the offence because others who have committed more serious offences of this kind seem to him to have received a lesser sentence than himself. Today, he made specific reference to having come across an inmate who appears to have been sentenced in a way which makes the Applicant's case appear to be too harsh. On this aspect, all that we need to say is that every case is different and we are only concerned with whether the Applicant's sentence was a proper one.

7. The Applicant also asked this court to consider his family situation and, in his grounds of appeal, pointed out that he did not have a weapon in his possession and it was not himself that wounded the victim. On this aspect, the Applicant fails to appreciate that, when an offence is committed by two persons acting together in a common enterprise, each bears responsibility for the acts of the other person which are done in the course of that enterprise.

8. The judge explained his reasons for sentencing in the clearest possible terms and the sentence was wholly appropriate for a case of this gravity. Accordingly, the application is dismissed.

9. It is an application which has no merit whatever and for this reason we shall order that three months of the time which the Applicant has spent in custody shall not count towards his sentence.