R. v. HONG FEI WAN and Another

IN THE COURT OF APPEAL

1994, No. 481
(Criminal)

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J U D G M E N T

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

1. The applicants, who are illegal immigrants, pleaded guilty before Deputy Judge Daniell in the High Court to one count of robbery and one count of possession of an imitation firearm at the time of committing an offence, and were both sentenced to concurrent terms of nine and five years' imprisonment. They now apply for leave to appeal against those sentences.

2. Mr Mackay, who appeared for the applicants in this court but not in the court below, submitted that the overall starting point of 12 years' imprisonment which the judge adopted was too high and that therefore the resulting overall sentence of nine years' imprisonment, after discount had been given for the pleas of guilty, was manifestly excessive. He further submitted that the robbery fell into the category which this court in Mo Kwong-sang v. R. [1981] HKLR 610 at 611 said should normally attract a sentence of five years' imprisonment.

3. In A.G. v. Lam Wing-kwong A.R. No. 6 of 1993 another division of this court observed that a starting point of five to six years' imprisonment after conviction for the offence of carrying an imitation firearm with intent to commit an arrestable offence would be correct. In the present case, the applicants were not simply in possession of the weapon at the time of committing the robbery but they actually produced it and used it together with a knife with a serrated blade to carry out the robbery.

4. While we accept that this robbery was committed in a public place and not in private premises there were two robbers armed with two weapons who were on the prowl looking for a suitable victim. Having selected that victim they pursued him and used considerable violence in overpowering him. The victim was robbed not only of cash and a wrist watch but he was also relieved of his bank card. As was pointed out by another division of this court this is an aggravating factor.

5. In all the circumstances we do not think that the starting point of 12 years' imprisonment adopted by the judge was too high. Full credit was given for the pleas of guilty. The sentences passed were neither manifestly excessive nor wrong in principle. We therefore refuse both applications.