HKSAR v. CHEUNG TZE LUNG

CACC 511/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 511 OF 1999

(ON APPEAL FROM DCCC 755 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. The Applicant was charged, together with another man, with attempted robbery. He faced a second charge of remaining in Hong Kong without authority. On 27 September 1999, Judge Muttrie dealt with the Applicant, after he had entered pleas of guilty to both charges, and imposed sentences which were partially consecutive. On the second charge, for which a consecutive sentence of fifteen months is normally imposed, the judge took into account totality and made this run, in part only, consecutively with the sentence imposed for the robbery. This was because he took seven years as the starting point for the robbery and reduced the sentence to four years and eight months to take into account the Applicant's plea. In the overall result, the sentence imposed upon the Applicant was five years and three months. The Applicant now seeks leave to appeal against sentence.

2. The general facts of the case are very straightforward. On 26 July 1999, at about 4.00 a.m., a taxi driver parked his vehicle and began to walk home. It was at this stage that he was attacked by the Applicant and the co-accused. The Applicant grabbed the taxi driver's neck from behind with a pipe and the driver fell to the ground. The co-accused then struck the driver's head with a hammer calling out that this was a robbery. The Applicant searched the taxi driver but could find nothing valuable to steal. The Applicant and the co-accused told the unfortunate victim that they would take him back to his home to get some money.

3. The victim was then escorted back to his address and he was told that if he played any tricks he would be killed. In due course, they arrived at the premises where the victim lived and, as he entered the building itself using a code to get through the front door, he immediately ran forward and alerted a security guard inside as to what had happened. The Applicant and his co-accused then ran away. They were shortly afterwards arrested in the vicinity of the robbery. The victim was taken to hospital and was found to have a small cut and an abrasion to the left side of his forehead.

4. The Applicant complained in his written grounds that the sentence was too long and he has today complained in particular that it was unfair on him that he should receive the same sentence as his co-accused who used the hammer to hit the victim on the head and made the threat to kill the victim.

5. The Applicant should understand that when two people join in to commit a criminal offence together, each must share the blame for what occurs. This escapade clearly contemplated a robbery on a victim who would be unlikely to comply willingly with their demands. The Applicant and the co-accused made sure the victim did comply, whether or not he was willing.

6. The sentence imposed by the judge was based on the well-known guidelines in the case of R v Mo Kwong-sang (1981) HKLR 610, and the Applicant was given the full benefit of his pleas of guilty by the judge when he imposed sentence.

7. There is, therefore, nothing of any substance in the grounds of appeal advanced, and we dismiss the application.