HKSAR v. Ng Li Kwok

CACC000250/2000

CACC 250/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 250 OF 2000

(ON APPEAL FROM DCCC NO. 529 OF 1999)

Coram: Hon Stuart-Moore, VP, Wong and Woo JJA in Court

Date of Hearing: 20.2.2001

Date of Judgment: 20.2.2001

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J U D G M E N T

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Wong JA (giving the judgment of the court) :

1. The applicant was jointly charged with two other men with the offence of attempted robbery. Each faced an additional charge of remaining in HK without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115. They appeared before Deputy Judge Tallentire in the District Court and pleaded guilty to those charges. The Applicant was sentenced to imprisonment for 2 years and 11 months for attempted robbery and to a consecutive term of 12 months for the immigration offence, making a total sentence of 3 years and 11 months.

2. On 21st December 2000, the applicant appeared before Stock J.A. in an application for leave to appeal against both conviction and sentence out of time. Stock J.A. gave leave to appeal against sentence out of time but refused to give leave to appeal against conviction out of time.

3. The applicant has now renewed his application in respect of conviction. Before us, this morning, he maintained that he did not commit the offences and therefore he was no longer pursuing his application for which leave was granted to him in respect of sentence.

4. In the circumstances, we dismiss his appeal against sentence.

5. The prosecution case was very simple. In the early hours of 21st May 1992, a team of police officers arrested the applicant and the two other men in Ta Kwu Ling for having entered Hong Kong illegally. They were taken on board a police vehicle to Sun Uk Lan Detention Centre for repatriation to the mainland. It was whilst on board the police vehicle that the offence of attempted robbery was committed when the three men together, acting in different ways, pushed the officers and grabbed the handle of the revolver of one of the officers. They did not succeed and were overcome after a struggle.

6. The applicant's case in this court was that he had not entered Hong Kong illegally because when he was arrested he had not crossed the border to Hong Kong. He argued that under a Prosecution Statement issued by the Legal Department in 1990 he could not be charged and convicted because he was a first offender. It is true that this was the first time he had come to Hong Kong but he ignored the fact that a person, although a first offender, could still be prosecuted and convicted if he also committed another offence whilst he was in Hong Kong.

7. In so far as the attempted robbery was concerned, he said it was a complete fabrication by the police and as he was handcuffed, it was not possible for him to do the act that was alleged in the agreed facts. Moreover, he was pressurized by his lawyers into pleading guilty. We find these absurd allegations completely groundless and without the slightest merit. Apart from his pleas of guilty, there is a substantial amount of evidence to prove both charges against him. The facts were agreed and there is also an affirmation from his lawyers who denied putting any pressure on him.

8. Accordingly, leave to appeal against conviction out of time is dismissed.

Representation:

Mr Anthony Cheang, GC, of the Department of Justice, for the Respondent

Applicant in person