HKSAR v. LEUNG CHIM FUNG

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.378 OF 1997

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J U D G M E N T

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1. The appellant appeared before a magistrate on two charges. The first was the offence of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong and the second being possession of an imitation firearm, which he was jointly charged with another man. He pleaded guilty to the first charge and was convicted after trial of the second. He was sentenced to 15 months' imprisonment on the first charge and 18 months' imprisonment on the second charge. 6 months of the 18 months sentence was ordered to run concurrently with the sentence of 15 months imposed on the first charge. This in effect means a total sentence of 27 months' imprisonment. He appeals against both conviction and sentence.

2. The prosecution case is that at about 9:30 p.m. on 10 November, 1996, Mr. Tso Tse-ling was riding his bicycle to work when he was confronted by three men. One of the men pointed a gun-like object at him and shouted "robbery - take out your wallet". He handed over his wallet to the men but asked for the return of his identity card, which the men did. The one who pointed the gun-like object at him then left with another men on his bicycle while the third man left on another bicycle. Mr. Tso attended an identification parade on 12 November 1996 and was able to identified D2 as the men who was holding the gun-like object. The appellant was D1 at the trial. He was unable to identify the appellant.

3. About 15 minutes after the robbery, the appellant was seen by police officers not far from the scene of the robbery riding with another man on Mr. Tso's bicycle. He was apprehended but the other man and the third man on the second bicycle managed to escape. A civilian witness saw the apprehension of the appellant. Prior to this, he had seen one of the men on Mr. Tso's bicycle thrown something into the bushes nearby. A subsequent search of the area by the police resulted in the discovery on the following day of the imitation pistol. At the time of his apprehension the appellant was found to be in possession of pellets suitable for use in that pistol.

4. The appellant made cautioned statements to the police after his arrest, which he disputed that they were made voluntarily and alleged that the contents of the first statement had been fabricated, at least in part, by the police officer who took it from him. Having considered the evidence the magistrate was satisfied beyond reasonable doubt that that was not the case. He placed full weight on the admissions which he believed to be the truth of the matter. In that statement, the appellant admitted that the pistol was his and was bought in Shenzhen before coming to Hong Kong and that he had thrown it into the bushes near to the place where he had been intercepted the police.

5. The appellant gave evidence on both the statements and the general issue. On the statements, he said that he was assaulted by as many as 7 to 8 officers at one time. He was kicked and hit on the lips and the chest. He was still assaulted before and during the taking of the statements. He said that he admitted the offence of remaining in Hong Kong after having landed unlawfully but denied robbery or having anything to do with the imitation pistol.

6. On the general issue, he said that on the night of 10 November at about 9 o'clock he arrived somewhere near a bus stop, having earlier climbed over the mountains and entered Hong Kong illegally. He was walking on the pavement but had no idea what area he was in. He saw a police vehicle being driven past. He was not on a bicycle and he did not know the two men who were on the bicycles. He admitted that the pellets were his which he had always kept them in the left upper pocket of his shirt.

7. The magistrate rejected the appellant's evidence on both the cautioned statements and the general issue. He found the charge proved against him. He made it clear in his statement of findings that save for the confessions, the remaining evidence against the appellant on the imitation firearm charge was circumstantial. He had addressed his mind to all the evidence before he convicted. There is nothing to cause me concern that the conviction is unsafe and unsatisfactory. The appeal against conviction is dismissed.

8. On the question of sentence, I am satisfied that the sentence imposed by the magistrate is neither manifestly excessive nor wrong in principle. In his reasons for sentence, the magistrate said:-

"Possession of such an imitation firearm in the circumstances in which it was used during the course of a robbery, which I found had been the case, brought the offence, in my judgment, into the most serious category for sentencing purposes. Bearing in mind the need for deterrence, both general and personal, I concluded that the proper starting point after trial was one of 2 years imprisonment."

9. If the magistrate erred, one would only say that he erred on the side of leniency. The appeal against sentence is also dismissed.