R. v. HO KEUNG

IN THE COURT OF APPEAL

1996, No. 290
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant, Ho Keung, pleaded guilty before His Honour Judge Longley in the District Court to three offences. The first was robbery, the second was possession of an imitation firearm and the third was remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was convicted on his own pleas and sentenced to 4 years on the first charge, to 8 months in respect of the second charge and to 10 months in respect of the third, the sentence on the first and second charges to run consecutively and that on the remaining charge to be concurrent as to 3 months, making a total of 4 years and 11 months. He now applies for leave to appeal against sentence.

2. In his own written notice of application for leave he set out the following three grounds:

"(1) It is the first time for me to commit an offence in Hong Kong.

(2) I pleaded guilty in the court.

(3) I did not play the main role but just assisted another in the robbery. Therefore, I hope the court will give a chance and reduce the sentence."

3. Before us today, he has added an additional matter and complains that he was treated as the mastermind simply upon the basis that he was the older of the two defendants. He submits that that basis was not fair as he was merely aged 20 and the other 17. I will return to that matter.

4. The facts can be readily taken from the reasons for sentence given by the judge. It was a robbery of a young couple late at night when they were sitting on a bench in a park. They were suddenly confronted by the applicant who pointed a toy pistol at the male victim's head. He then hit the male victim's head three or four times with the butt of the pistol. He later pointed the pistol at the two victims when they attempted to summon help by shouting "robbery".

5. He obtained the wallet of the male victim together with his bank cards, credit cards, MTR tickets, identity card and other cards. From the female victim he obtained one gold necklace, two gold bracelets, two gold finger rings, cash and a walkman, and even hair clips, a silver bracelet and a lipstick. The judge rightly took a serious view of the offence but he did say that the robbery was committed with another man who was aged 17 at the time. He added:

"You were aged 21 and therefore four years older than he was."

He also said:

"It is clear from the facts that have been put before me that you played the leading role in this robbery."

As we have said, the applicant complains about that finding. Whether he was 21 or 20 matters little. Likewise, whether he played the leading role or not also matters little, for it is quite clear that he played a very active part if not the main part. It was he who pointed the weapon and he who struck the male victim.

6. There is nothing in that complaint nor is there anything in his other grounds.

7. The offence was a serious one. It could have attracted a considerably higher sentence. The judge very properly, perhaps a little generously, gave him a full discount. In fact more than a full discount of the usual one-third for his plea. He took as a starting point 7 years for the robbery and reduced it to 4 years. Likewise, he reduced the starting point for the other two offences. As we have said, there appears to be no error in the sentence, it was not manifestly excessive. There was no error of principle. There is no merit in any of the grounds. Leave is refused.