R. v. LI CHIU and Another

IN THE COURT OF APPEAL

1994, No. 514
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. This case comes to us from a trial before Deputy Judge Jenkins in the District Court.

2. Three men were on trial. What the judge found proved beyond reasonable doubt against them may be outlined thus. They were passengers in a taxi. The taxi was stopped by the police. One of the three passengers produced and brandished an imitation firearm. It was a toy pistol. The officers drew their service revolvers. And they ordered the three to alight from the taxi. There was some delay in the nature of a stand-off. But eventually, the toy pistol was thrown out of the taxi. And everyone in the taxi alighted.

3. Two offensive weapons, being folding knives, were found. One was found on the person of the man who became the second accused. The other was found in the taxi. The three passengers were arrested, brought to a police station and interviewed under caution.

4. All three admitted that they were unauthorised entrants who had come from Shenzhen to Hong Kong to commit robbery here. The man who became the third accused admitted that the knife found in the taxi had been in his possession and had fallen out of his pocket.

5. We are concerned with the first and third accused who both seek leave to appeal against conviction and sentence. The convictions were reached and the sentences were passed on September 27 last year. These two applicants argued their own applications as to conviction. They were both represented by counsel, the same counsel, on the question of sentence.

6. The first accused's convictions are of conspiracy to rob, possession of an imitation firearm and remaining without authority having landed unlawfully.

7. The third accused's convictions are of those offences together with one of possession of an offensive weapon, being a knife.

8. Having recited the facts found by the judge, it is unnecessary further to relate those offences to the circumstances.

9. As far as sentence is concerned, both of these men each drew five years' imprisonment. The first accused's five-year term was arrived at thus: three years for conspiracy to rob; one year consecutive for possession of an imitation firearm; and one year consecutive for remaining. The third accused's five-year term was arrived at in the same way along with a concurrent one-year term for possession of the knife.

10. As to conviction, what the first accused put in his own written grounds of appeal is: that he was "framed"; that the police had no evidence; that the police forced and "lured" him into making a confession statement; that he had tried to explain that to the judge; that his explanation was in vain; that the judge passed a verdict on insufficient evidence; and that the judge was unfair.

11. In the course of argument, he expanded upon those grounds. Essentially, he seems to be concerned with the conspiracy to rob conviction. But he has not limited his application to that conviction. Nor do we so limit it.

12. As far as the third accused is concerned, his written ground of appeal is that he did not commit the offence which he described as "attempting to rob". He expanded upon that in the course of his oral presentation. And we have considered what he said in the context of all of his convictions.

13. Essentially, what each applicant has said in oral argument about his convictions is a reiteration of points made to and considered by the trial judge. There is no basis on which they should have leave to appeal against conviction; and they are refused such leave.

14. As far as sentence is concerned, the point made by counsel is essentially this. A proper application of the totality principle would have resulted in lesser sentences. And as to form, counsel suggested that such lesser sentences should have been achieved by making the sentences for remaining concurrent with the other sentences.

15. It seems to us that the first thing for us to do is to look at the whole of the conduct of each of these men and consider whether the punishment which he received was appropriate. And giving the matter such consideration, we have come to the conclusion that the sentences were within the proper range. For each of these men, five years was appropriate. And whether or not it is the most obvious way of achieving that total, the way in which the judge did it is legitimate and cannot be disturbed.

16. Leave to appeal against sentence is likewise refused.