R. v. LO MAN HON

IN THE COURT OF APPEAL

1997, No. 18
(Criminal)

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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, Leung Man-ho, applies for leave to appeal against conviction. He was the second of three defendants in a trial before His Honour Judge Lugar-Mawson in the District Court on 10th January 1997. There were several charges:

(1) The first charge against all three was robbery;

(2) The second charge again against all three was attempted robbery;

(3) The 3rd, 4th and 5th charges were against the 1st, 2nd and 3rd defendants respectively for remaining in Hong Kong without authority.

2. The 1st defendant named Wong pleaded guilty to the first and third charges. We should mention that he was sentenced to imprisonment for 3 years, on the 1st charge, and 9 months on the 3rd charge, of which 3 months was to run consecutively.

3. The applicant and the 3rd defendant pleaded not guilty to the first and second charges but guilty to the remaining charge in respect of each i.e. remaining in Hong Kong without authority. They both were tried and convicted of the first and second charges. The applicant was sentenced to terms of 4 years and 3 months imprisonment, 3 years and 6 months imprisonment and 9 months imprisonment, respectively, in respect of the first, second and fourth charges, the first two terms to run concurrently, and the fourth consecutive to those as to 3 months.

4. The facts are quite simple. On 18th September 1996 about 6 o'lock in the morning, the victim referred to in the first charge, Fong Shiu-ping, was riding his bicycle to work. He came to a place near the Wah Shan Tsuen Primary School in Sheung Shui. There he was intercepted by three men. He was knocked down from his bicycle and surrounded by the three. One of them demanded money from him, speaking in Putonghua, which Mr Fong understands. He surrendered about $2,000 to the men and also his coin purse. He had a mobile phone which was taken from him. Its battery was removed, thrown away and the phone was returned to him. In the course of the robbery all three men held him down. He identified the applicant and the 3rd defendant as having taken part in the robbery. He said it was they who held him down and held his shoulders. It was the other man, the 1st defendant, who spoke to him and took away his money and property. Fong was then released. When he left the scene, he saw the three men approach another man. He cycled away and made a report to the police using his mobile phone into which he put a spare battery he had with him. Soon afterwards, he met a police patrol van and joined the police to look for the robbers.

5. The other victim, specified in the 2nd charge was a Mr Cheuk Kau-chun, an elderly man. He said that the three robbers surrounded him. He gave them his purse which contained only $20. It was returned to him by one of them who punched him. That appears to have been the 1st defendant. He was then allowed to leave. He left the scene and shortly afterwards also saw a police van and he joined Mr Fong, who was in it. They with the police looked for the robbers. The three men were sighted shortly afterwards. They ran off on seeing the police van. The police gave chase and caught them. They were identified by the two victims, although there was no identification parade. That is not surprising in the circumstances.

6. We turn then to applicant's notice of application for leave to appeal against conviction. He gave as his grounds only this. He said:

"am a student prisoner. ... I am 18 years old. I was sentenced to four and a half years' imprisonment in Pik Uk Correctional Institute for the offences of robbery and illegal remaining in District Court on 10th January 1997. However, I have an elderly grandmother back home. She is already over 83 years old and my mother is over 60 years old. Since my father had passed away when I was eight, I have to make money to support the two elderly. Therefore, I hope that the Superintendent will help me to lodge an appeal..."

It can be seen that these grounds all might weigh in relation to an appeal against sentence but have very little if anything to do with an appeal against conviction. Having regard to that, we enquired from the applicant whether it was his intention to apply for leave to appeal against conviction. It appears that it is for he told us that he did not take part in the robbery. The police officers, he says, toyed with him. Besides he asks for early release because he wants to look after his elderly grandmother and mother, and he has to find a job to support them. He said he has been in prison for almost a year and since he has been there, he has not been able to remit any money back home; he has no idea of what has happened to them.

7. The judge carefully addressed the case against the applicant which was overwhelming. With the other two, he was arrested in the vicinity. He was identified and nothing he says, in any way detracts from the reasons the judge gave or the case against him. There is simply nothing to support his application for leave to appeal against conviction, which we have no hesitation in refusing. The application for leave is dismissed.

8. Because from the outset, the grounds he specified were related to considerations going to his sentence, we have looked at the judge's reasons for sentence. These are very carefully stated and given at length. He considered all the factors he should have and give due weight to them. Although he came to arrive at a sentence of 4 years and 6 months, which might at first sight seem a bit high in relation to so young an offender and an offence in which no weapons were used, the judge's reasoning was entirely proper. We would not have been able to find any reason to fault him had there been an appeal against sentence. We add these remarks simply because the reasons originally relied upon relate to sentence. There was no application made for leave to appeal against sentence.