HKSAR v. WONG YUNG

IN THE COURT OF APPEAL

1997, No. 156

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant together with another man was charged with two offences. The first was robbery and the second was possession of arms without a licence. He had prior to this been charged with remaining in Hong Kong without the permission of the Director of Immigration. He had pleaded guilty to this offence and had been sentenced to 15 months' imprisonment. Initially he and his co-accused had pleaded not guilty to the two offences.

2. During the course of the trial the applicant indicated his wish to change his plea. He also indicated a willingness to become a prosecution witness and give evidence against his co-accused. It would appear that this may well have been one of the reasons why his co-accused then decided to change his plea.

3. In this connection both men pleaded guilty to robbery and the second count was not proceeded with.

4. The applicant was sentenced to 5 years' imprisonment which the judge ordered should run from the expiration of the applicant's sentence of 15 months' imprisonment on the immigration offence. The applicant seeks leave to appeal against this sentence.

5. The facts of the case were that the applicant and his co-accused had just arrived in Hong Kong as illegal immigrants. While they were walking over the hills they saw an old air rifle and picked this up. They went on to the road at Tai Po. They saw a taxi and hailed it. The taxi stopped and they got in. They asked to be taken to Kowloon. The taxi driver struck up a conversation with the men, and informed them that there may be a police road block ahead. The co-accused said "the worst was to die with them". The taxi driver could see the barrel of the air gun and was very frightened. He suggested that the men should alight from the taxi. The men said that they were hungry and demanded several hundred dollars to enable them to purchase food. The taxi driver agreed to give them money if they got out of the taxi. This was agreed and he gave them $30. He made a report to the police who arrested the men a short time later.

6. Wong J adopted 8 years as his starting point. Because the plea came at a very late stage he was only prepared to give a 25% discount for it. However he did make a further reduction so as to give credit for the offer to give evidence against his co-accused thus resulting in the sentence of 5 years' imprisonment.

7. In his grounds of appeal the applicant relies on the following matters:

1. The absence of force.

2. The small amount involved.

3. The fact that the air gun could not have been used and that it had not been his intention to threaten the taxi driver with it.

4. He was only seeking humanitarian assistance.

5. His plea and offer of assistance and

6. That the sentence should have been made concurrent to the term he is presently serving.

8. All of these matters referred to were before Wong J. It is also true to state that the judge accepted that the applicant had hitherto been a person of good character.

9. There is some merit in the contentions which have been advanced. It could be said that the air gun was not a particularly lethal weapon. In addition to this we consider that the judge perhaps did not attach sufficient weight to the fact that the applicant was already serving a sentence of imprisonment. We have decided that the most appropriate course to adopt would be to make 1 year of the sentence he was serving concurrent to the sentence which was imposed upon him.

10. The result of this would be that the total of 6 years 3 months' imprisonment would be reduced to 5 years 3 months. Treating the application as the substantive appeal we allow the appeal to this extent.