HKSAR v. WONG YUK CHEUNG

CACC156/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 156 OF 1999

(ON APPEAL FROM DCCC 75 OF 1999)

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 12th March 1999, the Applicant pleaded guilty in the District Court before Judge Christie to one offence of remaining in Hong Kong without authority. He pleaded not guilty to offences of robbery and resisting a police officer in the execution of his duty. Following conviction, he received a sentence of three years' imprisonment for the robbery. On the other charges, he received one month for resisting a police officer and six months for remaining in Hong Kong which were made concurrent to each other but consecutive to the sentence imposed to the robbery, making 3 1/2 years in all. The Applicant now seeks leave to appeal against that sentence.

2. The facts were very straightforward. The Applicant attacked the victim in the robbery (PW1) as she walked along a path leading to Pai Tau Village in the New Territories. She was grabbed at her neck which caused her to fall and the Applicant fell with her, down a slope. After they had both climbed back up the slope, the Applicant produced a very small knife and threatened PW1 with it. PW1 took fright and dropped her wallet which the Applicant picked up before he ran off. An hour later, police did a sweep of a nearby hillside and discovered the Applicant at a time when he was changing his trousers. He was searched and in his possession was found a nail clipper which had a 2-inch blade that could be extended from it. When PW2 was about to handcuff the Applicant he was pushed to the ground. PW3 caught up with the Applicant and effected an arrest. Those two officers (PW2 and PW3) sustained minor injuries. However, PW1 received multiple abrasions on her right ankle, right knee, right arm and right hand. At a later identification parade, PW1 picked out the Applicant as the culprit who had robbed her.

3. The Applicant admitted that he had sneaked into Hong Kong by hiding under a cross-border train from Shenzhen.

4. In his grounds of appeal, the Applicant describes himself as a 15-year-old student. He asks for a reduction in sentence so that he can have a chance to correct himself. He admits that he gave a false address to the police.

5. The Applicant's age is a matter of some doubt. There is reference by him to being 17 at one stage of the interview. The Charge Sheet shows him as being 18 years old and there is medical evidence which indicates that his bone structure is likely to be that of an 18-year-old. In court today, he has produced a certificate which purports to show that he is in fact only 15. This matter was also dealt with by the judge. In passing sentence, the judge had this to say and, for reasons that will emerge, I shall deal with all of what he said:

"Robberies by recently arrived illegal immigrants are prevalent in Hong Kong and are met by deterrent sentences. Therefore, you must serve a term of imprisonment.

This, be it noted, was an armed robbery. The starting point for armed robbery in Hong Kong is 5 years' imprisonment. The weapon employed by you was a small one, not capable of inflicting very much injury so I will treat this as a case of unarmed robbery for purposes of sentencing by taking a starting point of 4 years' imprisonment.

I find only one matter that counts in mitigation: your relatively young age. During the trial, your true age was a matter for speculation, but now that I have seen the medical report, for purposes of sentencing I shall treat you as a person of the age of 18 and discount your sentence by one year on that account. Your sentence on charge 1 is 3 years' imprisonment, which happens to be in line with the length of a sentence under a training centre order which might have been ordered if you were a citizen of Hong Kong.

On the 2nd charge, for the action you took, and bearing in mind that the officer suffered some injury as a result of falling, you are sentenced to 1 month imprisonment.

On the 3rd charge, illegally remaining in Hong Kong, I sentence you to 6 months' imprisonment.

I make those two latter sentences concurrent with each other but consecutive to the 3 years so that your total sentence is 3 1/2 years."

6. The sentence is open to criticism on one aspect but it will not be of any comfort to the Applicant. This court has time and again said that the appropriate sentence for remaining in Hong Kong without authority is one of 15 months' imprisonment. There was no reason to depart from that tariff in this case. Furthermore, that sentence should, in normal circumstances, be made to run consecutively to all other terms of imprisonment. (See: HKSAR v Wong Ching-wah, CACC 153 of 1997.) This Applicant is extraordinarily fortunate that the sentence imposed was not longer and that the judge, perhaps on account of the doubt as to age, took a remarkably merciful view.

7. We would also comment that the Reasons for Sentence did not give much indication of the pleas entered. There is reference to "the trial" from which it could be inferred that the robbery and the offence of resisting arrest had been contested, as indeed it turns out they were. There is nothing to indicate that the Applicant pleaded guilty to the other offence and we were left having to inquire of the Applicant himself to find out how he had pleaded. It may be that judges in the District Court have the impression that we are supplied with the transcript of proceedings but, in straightforward applications such as this one, we are usually only provided with the Reasons for Sentence, the Summary of Facts, the Charge Sheet and the record of interview. This Court otherwise heavily depends upon what the judge has said in his Reasons for Sentence as to what has actually happened so as to understand the full basis on which sentencing has been carried out.

8. There is no merit in this application at all and, accordingly, it is dismissed.