HKSAR v. CHEN PEIHONG

CACC479/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.479 OF 2004

(ON APPEAL FROM DCCC998 OF 2004 )

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JUDGMENT

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Burrell J (giving the judgment of the Court) :

1. On 28 October 2004, the applicant pleaded guilty to two offences before HH Judge Poon in the District Court : firstly, for an offence of carrying an imitation firearm with intent to commit an arrestable offence, contrary to section 18(1) of the Firearms and Ammunition Ordinance, Cap.238, he was sentenced to three years and four months’ imprisonment; and secondly, for an offence of possessing an offensive weapon, contrary to section 17 of the Summary Offences Ordinance, Cap.228, he was sentenced to six months’ imprisonment.

2. The applicant had entered Hong Kong on a two-way permit on 9 August 2004.  The next day he was arrested at the Star Ferry when carrying an imitation firearm, a knife and a screwdriver.  He confessed to the police that he had just come to Hong Kong from the Mainland intending to commit robbery.

3. At the time of his plea before the learned judge he was represented by counsel under the Legal Aid Scheme who presented the mitigation on his behalf.

4. The learned judge took into account a number of factors.  In particular, that the applicant had admitted his intended use of the weapons but that no specific robbery had in fact been planned at the time.  Also that he had pleaded guilty, that he had no previous convictions in Hong Kong, that he had a medical condition and that his family in China depended on him.

5. The learned judge took five years as a starting point on the 1^st Charge, a charge upon which the maximum sentence is life imprisonment.  She referred to the case of A.G. v. Lam Wing Fong [1993] 2 HKCLR 227 in support.  She took nine months as her starting point for the 2^nd Charge.  She rightly said that this was a proper case for the sentences to be concurrent and also gave the applicant the full discount of one-third for his guilty plea and other mitigation.  This all resulted in a total sentence of three years and four months’ imprisonment against which he now applies for leave to appeal.

6. On 11 November 2004, the applicant made his first application for leave to appeal against sentence.  This was heard by Cheung JA on 18 February 2005.  Leave was refused and on that occasion the applicant was warned that he would be liable for an order for “loss of time served” in the event that a subsequent renewal of his application should be unjustified.  The applicant now renews his application before this court.

7. He invites this court both in his written submissions and orally today to consider two matters.  Firstly, he urges this court to consider the case of HKSAR v. Lam Kwong Wai & Anor, CACC213/2003, in relation to sentence rather than the authority cited by the learned judge which, he complains, was an old case dating from 1993.  There is no merit in this ground, which was also advanced before Cheung JA, for a number of reasons :

(1)	that case concerned an offence under section 20 of the Firearms and Ammunition Ordinance whereas we are concerned with the more serious offence under section 18;
(2)	that case concerned an appeal against conviction after trial whereas we are concerned today with an appeal against sentence after a plea of guilty;
(3)	that case considered the constitutionality of a defence to a section 20 offence and no such considerations apply in this application; and
(4)	the 1993 authority referred to by the learned judge remains good law in relation to matters of sentence for section 18 offences.

8. The second matter he invites us to consider, which again, is contained in his written grounds and which he repeats today, is that he did not intend to rob at the time.  This matter was also advanced before Cheung JA at the time of his first application.  We cannot entertain this ground.  There was ample evidence before the learned judge that this ingredient of the offence was satisfied.  It formed part of the admitted summary of facts, it stemmed from a voluntary admission to a police officer and the applicant was represented in the District Court by solicitors and counsel.

9. For these reasons we have concluded that there is no merit in this appeal.  No criticism can be made either of the starting point chosen by the learned judge or for the amount of discount she gave upon the applicant’s pleas of guilty.  We therefore refuse the application to renew the application for leave to this court.

10. The applicant was warned both in writing and orally in court by Cheung JA that loss of time could result if it were determined by this court that there was no justification in the renewal of the application.  The applicant has now been given an opportunity to address us on this matter and has made brief representations.  We are of the opinion that this application should not have been renewed and we therefore order, pursuant to section 83W of the Criminal Procedure Ordinance, Cap.221, that one month of the time served shall not count against the sentence he is presently serving.