HKSAR v. FUNG KWOK PAN

HCMA 940/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 940 OF 2003

(ON APPEAL FROM KCCC 14475/2003)

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J U D G M E N T

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1. The Appellant had pleaded guilty to one charge of robbery and was sentenced to a term of 21 months' imprisonment. He now appeals against that sentence.

2. The Appellant in this charge had intercepted three youths aged between 15 and 16, and, after falsely accusing them of having assaulted his friend, instructed them to accompany him to a 2nd floor staircase where he ordered them to hand over their property. All the property was given to PW1, who was then taken by the Appellant, to another part of the staircase where the Appellant threatened to beat up PW1 unless he handed over the cash and the phone.

3. PW1 was only 15. After PW1 handed over the property, the Appellant then ran away and PW1 and the other youths then chased the Appellant to recover the items. The police then arrived and the Appellant was arrested.

4. The Appellant appeals against his sentence on the grounds that he should not be sentenced for his previous offences, that he wished to be released early in order that he be able to look after his family, and, that the sentence was manifestly excessive because he considered that this was not a robbery but merely cheating.

5. Well, let me correct instantly the Appellant's conclusion. This is certainly a robbery. Threat was made to the victim and it was as a result of this fear that was generated by the Appellant that he managed to take away by force the possessions of the three young boys. The Appellant also complained that he was forced to plead guilty but the transcript shows quite clearly that the Appellant's counsel had applied for bail and the learned Magistrate had refused bail, and it was only at that stage that the Appellant indicated that he wished to plead guilty.

6. The Magistrate, very properly, then informed counsel that he was not ready to accept that plea and asked counsel to take instructions. The case was then stood down from 1:11 p.m. to 4:10 p.m. and it was then that counsel informed to the court that the Appellant had decided to plead guilty. So the Magistrate then took plea from the Appellant.

7. The Appellant also mentioned that he thought that this may have angered the Magistrate and therefore he was given a higher sentence. The learned Magistrate very clearly in sentencing the Appellant based his decision on the facts of the case and also that the Appellant is a recidivist because the Appellant has no less than 7 previous convictions for robbery or attempted robbery and the Appellant is only 26 years old, and it is clear that the Appellant committed this offence shortly after his release from prison, from his last robbery conviction.

8. The learned Magistrate very properly considered that the persistence of the Appellant in committing offences of robbery aggravated the current offence and therefore the learned Magistrate is entitled to take a higher starting point than he would have had for someone of a clear record. So the learned Magistrate decided on a starting point of 3 years and he deducted 1 year off for the Appellant's plea and he further reduced it to 21 months.

9. I see no valid ground of appeal in this case, the sentence was entirely proper, it was a severe sentence but not manifestly excessive or wrong in principle and so the appeal is dismissed.