HKSAR v. RODRIGUEZ ALFONSO GIOVANNI

CACC 346/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 346 OF 2001

(ON APPEAL FROM HCCC 355 & 380 OF 2000)

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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):

Introduction

1. On 17 August 2001, following a trial in the Court of First Instance before Deputy Judge Whaley, the Applicant (D1), aged 40, a married man with four children who comes from Colombia, was convicted by the jury of robbery. On the same count of robbery, the jury acquitted D2 but convicted D3. There were two other defendants who had earlier pleaded guilty to the same charge. Sentence was therefore adjourned in D1 and D3's cases to 29 August 2001 when all those whose responsibility had been established for this robbery could be dealt with together. On that date, D1 and D3 each received a sentence of eight years and nine months' imprisonment.

2. D1 next came before the court on 11 February 2002 for a 'mention' hearing before the Chief Judge of the High Court, having lodged a notice of application for leave to appeal in relation to conviction and sentence. He informed the court that he would be abandoning his application in relation to conviction. The Chief Judge told him that, if that was so, he should formally abandon his application in writing. The Applicant failed to do so, but today he indicated once more that he did not intend to pursue his application in relation to conviction and accordingly this has been dismissed.

Sentence

3. The robbery involved a victim whose briefcase contained 191 diamonds valued at about HK$15.6 million. This was taken from him by force. On 21 June 2000, D1 and his co-defendants became the subject of a police surveillance operation which started in Tsimshatsui at about 11.30 a.m. When the suspects came across to Central, they joined another group of Colombians. There were about ten or eleven of them altogether as they walked along Stanley Street behaving as if they were normal tourists.

4. The victim, who had himself been engaged in Tsimshatsui during the morning in his work as a diamond trader, was carrying the briefcase containing the diamonds when he went into a building in Stanley Street. Some of the group of Colombians followed him inside and, at the lift, he found himself surrounded by about four or five men. One of the robbers brandished a knife and ordered him to hand over his briefcase. The victim put up a struggle in the course of which he received injuries.

5. Police who were close at hand were quickly able to arrest the culprits. When D1 was arrested a short distance away at the Central Market, he had bloodstains on his shirt, and some of these exactly matched the victim's DNA profile.

6. In his evidence at trial, D1 claimed, in a version of events which the jury plainly rejected, that he had been out shopping with a girlfriend and that he had received a telephone call informing him about a man carrying a briefcase containing diamonds. He had gone to the building where the robbery occurred and, when a knife was produced, he told the others not to do it. He admitted that he was an habitual thief who steals unattended briefcases, but he said that he had no idea that the robbery plan involved the use of a knife. He said that his purpose in coming to Hong Kong for a month was to purchase clothes for his clothing business in Colombia.

7. When the judge passed sentence, he expressed the view that this was a carefully planned robbery on a victim who had been made the target of their attack. He observed that the robbery had been carried out by a group of four or five men inside private premises with the use of a knife. The victim had suffered a superficial abdominal wound, a knife wound to the left elbow and a dislocated shoulder. The judge rightly considered, taking also into account the very high value of the contents of this briefcase which was the object of the attention of this gang, that all of these features aggravated the offence for the purposes of sentence.

8. There were no convictions recorded against D1 in Hong Kong. There was virtually no other mitigation which could be put forward on his behalf as counsel very properly had to inform the court that D1 was still maintaining his innocence. However, the judge was reminded that the briefcase and its valuable contents had been recovered intact and that the victim was discharged from hospital on the same day as the robbery.

9. The judge was also reminded of Keith JA's judgment in HKSAR v Rohrer [2001] 3 HKC 371 where the appellant was given a specific discount to take into account his foreign nationality and the consequent hardships he might suffer while serving a sentence in a Hong Kong jail. On 13 December 2001, we gave judgment in HKSAR v Hong Chang-chi [2002] 1 HKC 295, where this court held that the decision in Rohrer was contrary to well-established principle and had been given per incuriam. However, acting upon what had been said in Rohrer before the decision in Hong Chang-chi had been given, the judge gave D1 a three-month reduction from the nine-year starting point which he had decided was appropriate.

10. We have been addressed at very considerable length today by D1 but nothing he has said can sensibly affect the application he has made in relation to sentence.

Conclusion

11. There is no merit whatever in this application. The nine-year starting point is not open to any criticism and D1 is fortunate indeed to have benefited from the judgment in Rohrer which was wrongly decided.

12. The application is dismissed.