THE QUEEN v. VAN TRONG KHAI

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H E A D N O T E

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ASSAULT WITH INTENT TO ROB -18 MONTHS PROPER SENTENCE WHEN ONLY SLIGHT FORCE USED.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 329.OF 1988

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J U D G M E N T

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1. The appellant was convicted by Mr Tanzer at South Kowloon Magistrates Court of assault with intent to rob, contrary to section 10(2) of the Theft Ordinance, Cap. 210.

2. His appeal against conviction was without merit and was dismissed. He also appealed against the sentence of two years imprisonment.

3. The evidence accepted by the magistrate was that the appellant was one of a group of men who approached and surrounded the victim and his wife as they were walking in Nathan Road at 2:00 a.m. The appellant bumped and leant against the victim and asked him for money. When he said he had none, the appellant seized his jacket lapels and tried to remove his wallet from an inside pocket. The incident was observed by a patrolling police sergeant, who intervened and arrested the appellant.

4. The appellant has three previous convictions for possession of an offensive weapon, assault and wounding with intent. For the last offence he was sentenced to two years imprisonment.

5. The appellant's defence was that he was drunk and did not know what he was doing. In mitigation he told the magistrate that he was determined to give up drinking.

6. The magistrate used R. v. Lai Siu-keung⁽¹⁾ as a sentencing guideline. That was a case in which the appellant snatched a gold necklace from a woman's neck and ran off. The Court of Appeal reduced the sentence from three to two years.

7. Mr Lee, who appeared for the appellant in the appeal against sentence, submitted that the comparison was wrong, because of the risk of injury to the victim whose necklace is snatched. He suggested that this offence was more akin to aggravated pickpocketing. He cited the case of R. v. rung Wai-tai⁽²⁾, in which Addison, J. reduced the sentence on a pickpocket from two years to 18 months.

8. In my view two years would have been an appropriate sentence had the degree of violence been greater. Although the incident must have been greatly alarming for the victim and his wife, the actual force used was slight.

9. For these reasons I allowed the appeal and reduced the sentence to 18 months imprisonment.