HKSAR v. AU CHIN KWAN

HCMA 710/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 710 OF 2001

(ON APPEAL FROM ESCC 3427/2000)

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J U D G M E N T

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1. On 9 June of this year at Eastern Magistracy the Appellant was sentenced to a term of 15 months imprisonment he being convicted after trial of an offence of conspiracy to intimidate committed on or about 31 August 200.

2. The Appellant appeals against that sentence complaining in writing that it is too severe.

3. The Appellant is aged 21, he was placed on probation some 7 years ago for an offence of assault occasioning actual bodily harm and he was fined 3 years ago for an offence of possessing dangerous drugs.

4. On 31 August 2000 the Appellant together with 4 other men went to office premises in a factory building in North Point intent upon recovering money from a man called 'Andy'. That man was not there but the police who had been forewarned of what was to take place and had the premises under surveillance were there to protect those premises and the occupants.

5. This gang of which the Appellant was a member was armed with 2 heavy hammers bought for the purpose and 2 iron bars one of which had a sharpened end. The men burst into the premises, demanded to speak to the man 'Andy' and then set about damaging property and attacking one of the occupants of the premises before being necessarily subdued by police officers whom they also attacked.

6. The Appellant did not enter the office and did not attack anybody. His job was to keep a look out and to facilitate the gang's escape. What the learned magistrate said, in his reasons for sentence, about the Appellant's role was this:-

"You ... played a lesser part in the sense that you were outside holding the lift, but it was an essential part. You knew why you were holding the lift. You knew what was to happen. It was essential to arrange for a quick getaway ... and that was your role ... And you, like certain others have not pleaded guilty and have not got any mitigation."

7. The learned magistrate having adopted a starting point of 18 months imprisonment for the offence of conspiracy to intimidate then proceeded to say this to the Appellant because of his role on the 31 August:-

"In your case ... I will reduce that term marginally to one of 15 months imprisonment."

8. Before me this morning the Appellant has nothing to say in support of his appeal. In my view that is understandable because there is nothing in it. The sentence of 15 months imprisonment is neither wrong in principle nor manifestly excessive and the appeal is accordingly dismissed.