HKSAR v. CHOW TING YI

CACC 375/00

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 375 of 2000

(On Appeal from DCCC No. 630 of 2000)

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J U D G M E N T

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Woo, JA (delivering the judgment of the Court) :

1. The applicant who was the 2nd defendant at the trial was convicted by District Judge Whaley on 16 August 2000 on two charges, namely, robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210, and remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong, contrary to section 38 (1)(b) of the Immigration Ordinance, Cap 115. The 1st defendant in the case was charged with the same robbery and also for unlawfully remaining in Hong Kong having landed unlawfully in Hong Kong. The 1st defendant pleaded guilty to both charges and was sentenced to a total of 4 years' imprisonment. The 2nd defendant pleaded guilty to the unlawful remaining charge but denied the robbery charge. After trial, he was convicted by the Judge. For the robbery offence, the 2nd defendant was given a 5-year term of imprisonment, and for the unlawful remaining charge he was given 15 months' imprisonment. The Judge ordered 7 months for the second charge to run concurrently with the sentence for the robbery, the total sentence therefore being 5 years and 8 months.

2. The 2nd defendant applies for leave to appeal against both conviction and sentence. His grounds of appeal are that he did not commit any crime after having entered Hong Kong illegally on 17 May 2000, and that after entering Hong Kong illegally he did not do anything bad and therefore the sentences were too heavy.

3. Despite the 2nd defendant's elaboration of his grounds before us today, the facts of the case are in reality relatively simple. On 17 May 2000, at about 9 pm, the victim of the robbery Miss Yeung was walking home in Fanling. While she was on a footbridge across the Tai Wo Service Road West, a major three-lane carriageway separated by a dividing barrier, she was attacked by the 1st defendant who was brandishing a knife and trying to get her bag off her shoulder. She resisted and both fell to the ground. The 1st defendant pointed the knife at her face and she took her purse out of her bag. He snatched the purse and cleared out its content of $240. Miss Yeung snatched her purse back and continued to resist. She was shouting for help and at that point, the 2nd defendant came up and joined in the robbery. The 1st defendant and Miss Yeung were still on the ground. The 2nd defendant squatted down and at a distance of one foot away facing Miss Yeung he snatched her bracelet off her wrist and her handbag off her shoulder. The two defendants then fled into the night.

4. Miss Yeung was then able to borrow a mobile phone and made a report to the police. The police came very shortly afterwards with a tracker dog. They found various items that had been in Miss Yeung's bag scattered on the ground at a lamppost nearby. They continued their search and with the assistance of the tracker dog were able to find the two defendants crouching in the dark in the bushes about 20 feet away from the lamppost.

5. The only issue raised by the 2nd defendant at the trial was identification. On 19 May 2000, Miss Yeung attended two identification parades at the Sheung Shui Police Station and she identified the 1st defendant and the 2nd defendant respectively in these parades. Before the Judge, while the 2nd defendant admitted through his lawyer that he was identified by Miss Yeung at the identification parade, he denied that he was the person who had taken part in the robbery.

6. From the reasons for verdict delivered by the Judge when he convicted the 2nd defendant, it can be seen that he was extremely careful with the issue of identification. He referred to the case of R v Turnbull [1976] 63 Cr App R 132 and considered various aspects that were all relevant to identification. He considered the lighting on footbridge, the distance between Miss Yeung and the 2nd defendant when she first noticed his approach and when he was snatching her bracelet and handbag from her, the duration of her observation of him, her description of his appearance, build and age as well as his clothing. After very careful consideration, the Judge came to the conclusion that he was satisfied beyond all reasonable doubt that Miss Yeung's identification of the 2nd defendant at the identification parade was a reliable one. There is absolutely nothing to indicate that the Judge erred in any respect.

7. On sentence, the Judge referred to R v Mo Kwong-sang [1981] HKLR 610 and followed the guideline that for a robbery which involved the brandishing of a knife, a starting point of 5 years' imprisonment after trial would be appropriate. He therefore imposed a term of 5 years' imprisonment on the 2nd defendant for the robbery offence. He also took the usual starting point for unlawfully remaining in Hong Kong after unlawful entry of 15 months' imprisonment upon a plea of guilty as a starting point and imposed the same on the 2nd defendant. Seven months of the second sentence were ordered to run concurrently with the first sentence. We do not consider that the sentences imposed by the Judge are excessive.

8. Indeed, the application for leave to appeal against both conviction and sentence is entirely without merit. We had warned the 2nd defendant at the beginning of today that if we found that his application was without merit, we could order a loss of time that he had served. However, he has continued with his application. In the circumstances, we think this is an appropriate case for us to order a loss of 3 months, and accordingly, we direct that 3 months of the time that the 2nd defendant has spent in custody shall be disregarded in the computation of the sentence to which he is subject.