HKSAR v. FU Er-ban

CACC 633/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 633 OF 2002

(ON APPEAL FROM HCCC 342 OF 2002)

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J U D G M E N T

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1. This is an application for leave to appeal against sentence.

2. The applicant was convicted on his own plea before Tong J in the Court of First Instance on a count of robbery, contrary to s 10(1) & (2) of the Theft Ordinance, Cap 210, and a count of wounding with intent, contrary to s 17(a) of the Offence Against the Person Ordinance, Cap 212. The Judge imposed a term of 4 years' imprisonment on the robbery charge and 3 years' imprisonment on the wounding charge, and ordered 1 year of the sentence on the wounding to run concurrently with the sentence on the robbery. The total sentence is, therefore, 6 years.

3. Before the Judge, the applicant admitted the summary of facts. It disclosed that in the afternoon of 3 July 2002, the applicant boarded a taxi and when it reached the destination, he took out a flick knife of about 8 inches long, pointed it at the taxi driver's waist and demanded money. The taxi driver managed to jump out of the taxi and shouted for help. The applicant took away the driver's mobile phone together with a hand-free headset placed in the taxi before he fled. The taxi driver, assisted by two passers-by, gave chase. The applicant threw his flick knife and the stolen mobile phone at them.

4. The applicant managed to flee and ran into a public toilet. A Mr Tsang was at the time also inside the public toilet. When Mr Tsang was washing his hands, the applicant hit his head from behind once with a hard object. Mr Tsang turned round to see that the applicant was standing behind him carrying a metallic hook of about 11 inches in length. Mr Tsang was able to leave the toilet and locked the applicant in. The applicant broke the glass pane of a window and got out. The police arrived and they subdued him.

5. Before sentence, the applicant, aged 23 years, admitted being an illegal immigrant and having three previous convictions, namely, remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, possession of offensive weapon in a public place and common assault.

6. The Judge had obtained a psychiatric report on the applicant, which showed that he was not suffering from any mental illness. The Judge examined the hook and described it as "a rather long and heavy object, the tip of the hook was very sharp." Having considered the tariff case of R v Mo Kwong San [1981] HKLR 610, the Judge adopted a starting point of 6 years' imprisonment for the robbery. He reduced it by one-third to give credit for the guilty plea, arriving at 4 years.

7. The Judge took into consideration that the victim of the wounding had sustained a 3-cm cut on the back of his head, which needed suturing. The victim was given 6 days of leave. The Judge said:

"One cannot ignore that the attack was aimed at the head area and one may say the victim was very lucky as no serious injury has resulted."

8. He also said:

"I do not think it is an exaggeration if someone is to call the defendant that is -- if the defendant is called a dangerous person and has a violent propensity."

9. The Judge adopted 5 years' imprisonment as the starting point for the wounding offence and reduced it to 3 years to take into account the guilty plea.

10. Looking at the facts relating to the commission of the two offences, I share the view of the Judge that the applicant is a dangerous person with a violent propensity. He hit the head of Mr Tsang for no apparent reason, with such a dangerous weapon as the long metallic hook.

11. Apart from Mo Kwong San, Ms Ho, for the respondent, has referred me to the following cases that help demonstrate that the sentences imposed by the Judge were appropriate:

(a) In HKSAR v Lai Ting Wah & Anr [1998] 3 HKC 509, the Court of Appeal considered a sentence of 7 years' imprisonment appropriate for an offence of taxi robbery by the defendant and others where he had used a cutter to injure the taxi driver, resulting in multiple wounds over both of the driver's arms and abdominal wall requiring two days of hospitalisation. The trial judge reduced the 7-year starting point by 2 years for the defendant's clear record and young age of 19 years. The Court of Appeal increased the sentence to 6 years.

(b) In HKSAR v Ma Man-ho, CACC 252/1999 (20 August 1999, unreported), the applicant used a metal water pipe to hit a woman hard on the head in a lift, causing her to bleed and lose consciousness. He pleaded guilty to section 17 wounding. The Court of Appeal considered 4 years' imprisonment for the offence a proper sentence. This means that the proper sentence after trial would have been 6 years' imprisonment.

12. It is also to be noted that robbery and section 17 wounding are very serious offences, the maximum sentence for each being life imprisonment.

13. The only ground of appeal raised by the applicant is that the sentence is too heavy. Having considered the circumstances of this case, the above authorities, the fact that the applicant did not have a clear record and his age, I do not agree. I do not see that the ground of appeal is at all arguable.

14. In the circumstances, I refuse leave.

15. I remind the applicant that he is entitled to make a fresh application within 14 days of today to the Court of Appeal. However, I warn the applicant that if the Court of Appeal, when dealing with this fresh application, is of the view that his application has no merit, it may order a loss of time, and it is also entitled to order an increase of sentence.