HKSAR v. WONG TAK PO

CACC 256/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 256 OF 2003

(ON APPEAL FROM HCCC NO. 201 OF 2002)

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J U D G M E N T

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Hon Cheung JA (giving the judgment of the Court) :

Application for leave to appeal out of time

1. The applicant pleaded guilty to two charges of robbery. He was sentenced to a total of six and a half years' imprisonment by V. Bokhary J. on 5 August 2002. He now applies for leave to appeal against sentence out of time. His application was lodged on 27 January 2004.

Facts

2. The facts of the case showed that the applicant together with another defendant who had also pleaded guilty, robbed two pedestrians who were on their way home. The first was a sixteen year old student and the other was a forty-three year old woman.

First robbery

3. The first robbery took place on 23 February 2002 at about 9 p.m. The applicant and the co-defendant each used a six inch long serrated knife to threaten the student. They manhandled the student by grabbing his neck and pressing him down onto a shrub near the pavement. He was robbed of a wristwatch, a mobile phone and $10.

Second robbery

4. The second robbery took place two days later at about midnight. The victim was threatened with a long screwdriver and a paper cutter and was manhandled. The applicant and the co-defendant pressed their hands against the neck of the victim. She was pulled up some stairs and was forced to sit down. During the struggle, she suffered a 2 cm cut wound on one of her fingers. She was robbed of a mobile phone, $790 and some red packets.

Arrest

5. The second robbery was witnessed by a driver. He followed the applicant and the co-defendant after the robbery and contacted the police. Shortly afterwards the police arrested the applicant and the co-defendant.

Identification

6. The properties found on the applicant and the co-defendant were identified by the two victims to be their personal properties. They also identified the applicant and the co-defendant in the identification parades to be the robbers.

Substantial delay

7. The applicant lodged his application 17 months after the sentence. This is a substantial delay. He claimed that he was an illegal immigrant from the Mainland and arrived in Hong Kong a few days before the robberies. He committed the robberies in order to find money to buy food. After the sentence he did not lodge an appeal out of ignorance of the appeal process in the Hong Kong judicial system. He had limited education. After he began to serve his sentence in Stanley Prison, he discussed his case with the local prisoners and then came to understand his rights and the appeal process. He then made the application.

8. The applicant was transferred from the Lai Chi Kok Reception Centre to Stanley Prison on 9 August 2002. If he was not aware of the appeal process earlier it would not take him as long as 17 months to find this out. The applicant simply has failed to provide a reasonable explanation for the substantial delay.

Sentence clearly correct

9. The judge used a starting point of 7 years' imprisonment for each of the robbery. Although she initially reduced each to four and a half years because of the guilty plea, the ultimate sentence she imposed for the second offence was a two years' imprisonment which was to be served consecutively to the first, making a total of six and a half years' imprisonment.

10. The seven year starting point was in accordance with the tariff for robbery. The discount given was slightly more than one-third to reflect the early guilty plea of the applicant. He pleaded guilty in the magistrate court and was sentenced in the High Court. The total sentence of six and a half years' imprisonment was clearly appropriate. The applicant's claim that he needed to rob in order to find food and that he has family members to take care of in the Mainland are not mitigating factors.

Application dismissed

11. There is no merit in the application and accordingly the application is dismissed.