R. v. LI WAI KUEN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 62 OF 1992

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J U D G M E N T

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Mortimer, J.

1. The two applicants together with one other were convicted before His Honour Judge Kilgour on the 30th January this year of a number of offences.

2. The 1st applicant pleaded guilty to three offences. One of making off without payment, one of being in possession of an offensive weapon - a melon knife, and one of being illegally in Hong Kong. He was also tried and convicted on that day of an offence of conspiracy to rob with his co-applicant and one other.

3. The 2nd applicant pleaded guilty to an offence of making off without payment (a joint offence), and an offence of being illegally in Hong Kong. He also was convicted after trial of an offence of conspiracy to rob a joint offence with the other two.

4. Each of the applicants was sentenced to a total of 5 years imprisonment. They seek leave to appeal against their convictions for conspiracy to rob. They contend that they did not come to Hong Kong in order to commit robbery but came here in order to seek employment. So far as the 1st applicant is concerned, he says the knife which he brought with him was for perfectly lawful purposes of protection against small animals and insects and for use in creating bedding for himself.

5. Further, each applicant says that at the trial the Learned Judge was prejudiced against him; that he presumed because they had no money that they would eventually commit robbery; and that he failed to consider their evidence properly during a voir dire when they challenged the admissibility of confession statements which they had given to the police admitting that they came here in order to rob.

6. The 2nd applicant relies also upon the fact that he did not have a knife, and makes the point that another knife could not be bought by the conspiractors because they had no money.

7. In written submissions, several further points are made. The 1st applicant says that he did not give evidence in the Court below whereas he wanted to and was prevented by his barrister. Both say that the Learned Judge did not give sufficient weight to medical evidence of injuries when they were in custody.

8. The facts of this case are, indeed simple. According to statements which were admitted by the Learned Judge each of the applicants admitted that they arrived in Hong Kong the day before they were arrested by boat and that they came from the Mainland with the intention of committing robbery. They brought with them two melon knives, one of which they lost over board on the way. If their statements are to be believed, it was a fairly amateurish exploit. They had little money and no food. On arrival they travelled to Yuen Long and by 11 o'clock on the 9th October - the day of their arrest - they went to a restaurant for 'dim sum'. Two of them left, but the 1st applicant was caught leaving without paying. The police were called and he was arrested. Shortly afterwards the same day, the other two were arrested and they made the statements to which we have referred. In the statements, they said that they had plans to buy more knives and to rob a goldsmith in Yuen Long.

9. The matters which each of these applicants raises are not of substance when the proceedings in front of the Learned Judge are considered. once he had admitted those statements, and had considered all the evidence that was before him in them, the case became overwhelming.

10. There is no substance in the matters which each of these applicants has raised and each of their applications for leave to appeal against conviction is dismissed.

11. Thes first.applicant has been given leave to appeal against his sentence. The sentences imposed by the Learned Judge were as follows: for the offences for which he pleaded guilty he received 12 months in total - that is 3 months for making off without payment; 12 months for being in^-possession of^-an offensive weapon; and 12 ^months for being illegally in Hong Kong. All those sentences were concurrent. For the conspiracy to rob, he was given 4 years' imprisonment consecutive, making 5 years' imprisonment in all.

12. In considering the sentences which ought to be passed, the Learned Judge considered all the facts. He mentioned the problem of illegal immigrants entering Hong Kong in order to commit offences of robbery, and he said because of the prevalence of the problem, "I considered a heavy sentence is appropriate even though the robbery was not carried out." It was open to the Learned Judge to have in mind the prevalence of this type of offence. It is necessary for those who may be tempted to come into Hong Kong to commit offences to know that severe punishment awaits them if they are caught. Whereas there were certain features in this case (if the statements are true) which show that this was a somewhat amateurish exploit, the sentences passed by the Learned Judge were in our view completely justified and the appeal against sentence is dismissed.