R. v. SUNG HO PAN

IN THE COURT OF APPEAL

Criminal Appeal 396 of 1996

____________

_______________

J U D G M E N T

_______________

Wong, J. (giving the judgment of the Court):

1. The Applicant was convicted after trial before His Honour Judge Muttrie of one charge of robbery and another charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was sentenced to 4 years and 6 months imprisonment on the first charge and 15 months on the second charge. Part of the 15 months' sentence was ordered to run consecutively resulting in a total sentence of 4 years and 9 months. He seeks leave to appeal against that sentence.

2. In the early hours of 12 November 1995, the Applicant broke into a dwelling house consisting of three storeys in order to steal. The house was occupied by a couple. Madam Kum woke up to go to the toilet and saw the Applicant in the sitting room on the 2nd floor searching the wall cabinet. On seeing Madam Kum, the Applicant threatened her with a pair of scissors which was taken from the house. The Applicant then ordered her to give him money. Madam Kum led him to her bedroom and took out $350 from her handbag and gave it to the Applicant. Not content with that, the Applicant snatched the handbag and having searched and found nothing in it he threw it onto the floor. He also took a wrist watch on a desk before he fled. In addition to the cash and watch, a portable phone with the maker's name 'Ericsson', a pager, a lady's wrist watch and a white stone chop were also stolen.

3. The Applicant was arrested by the police on 24th November 1995 and a number of articles were found on him and these included an 'Ericsson' portable phone, a pager, a lady's wrist watch and a white stone chop.

4. Under caution, the Applicant admitted that he was an illegal immigrant. He was identified by Madam Kum in an identification parade.

5. Before us and in his written grounds, he said that he only stole but did not rob. He stole the portable phone and the pager but did not rob the lady her money and watch. He did not threaten her with a pair of scissors. The lady could have made a mistake in identifying him because he was a Northerner and not a Cantonese. This is an appeal against sentence and we are not concerned with matters that pertain to conviction. He told us that he had a seventy year-old paternal aunt who brought him up. He missed her very much and asked for a chance to be released early so that he could look after her.

6. The judge noted that this was a robbery in a dwelling house in the course of a burglary at night. Fortunately there was no actual violence but a pair of scissors was used to threatened the victim. He took a starting point of 5 years for the robbery which, in our view, is a right one. He allowed a six months' discount for his clear record. The sentence of 15 months' imprisonment is the standard sentence for the offence of remaining in Hong Kong after having landed unlawfully.

7. Having regard to the offences and the facts of this case, we are satisfied that the sentences imposed on the Applicant are neither manifestly excessive nor wrong in principle. The application is refused.