HKSAR v. Mo Long

CACC000268/1999

CACC 268/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 268 OF 1999

(ON APPEAL FROM DCCC 231 OF 1999)

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Coram: Hon. Stuart-Moore VP, Mayo and Wong JJA

Date of Hearing: 15 December 1999

Date of Judgment: 15 December 1999

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 30 April 1999, the Applicant was convicted, following a trial in the District Court before Deputy Judge Duggan, on charges of attempted robbery and resisting a police officer in the execution of his duty. The Applicant pleaded guilty at the outset of his trial to a third charge of remaining in Hong Kong without authority. All the offences related to 6 February 1999. On 14 May 1999, the Judge imposed sentences of four years, one month and six months respectively and ordered that they should all run consecutively, making four years and seven months in all. The Applicant now seeks leave out of time to renew his application before this Court for leave to appeal against conviction on charges 1 and 2 and sentence in respect of all charges, having been refused leave by the Chief Judge on 7 September 1999.

2. The Chief Judge stated that the Applicant could renew his application within fourteen days but it is clear that the Applicant did not do so for some six weeks. However, we do not consider that, in the particular circumstances of this case, the Applicant was late in any wilful sense. He apparently wrote to the Legal Aid Department a letter which he produced in court, and sought Legal Aid to go to the Court of Final Appeal. It was because of correspondence with the Legal Aid Department that his application to this Court was apparently delayed. In those circumstances, we can give leave out of time in order to entertain the application.

3. The important issue in the case relating to charge 1 can be summarized as amounting to a straight contest between the victim's account and the Applicant's, as to why the Applicant approached the victim at some time around 1.15 a.m. as the victim was making his way home. The victim said that the male who attempted to rob him held an iron rod above his head in one hand while he stretched out his other hand and said something in a language which he was unable to understand. The victim turned and ran and was chased by the Applicant. The Applicant was soon afterwards arrested, following a short struggle reflected in charge 2, which effectively amounted to a push which knocked the officer down when he tried to arrest the Applicant. When the Applicant was searched, he was found to have a metal bar up one of his sleeves.

4. The Applicant's case presented a very different picture. It was that he was hungry and merely asked the alleged victim for $20. The metal bar that he carried was to ward off dogs in the area. The Applicant denied the second charge and said that the police assaulted him.

5. In the grounds of appeal which have been placed before us, the Applicant has once again attempted to deal with issues that were before the court below. In particular, he relied on discrepancies over timing as between the officers and the victim. The fact is that timing has no bearing upon this case whatsoever. The issue in the trial was whether the Applicant's approach to the victim was merely to ask for money or to attempt to rob him. None of the matters raised by the Applicant have any sensible bearing upon the outcome of the case which depended upon credibility and the identification of the Applicant as the person who attempted to rob the victim. As to identification, there was very little dispute because the Applicant actually admitted approaching the victim for the reason he gave in his defence. His grounds of application relate, in effect, to a repetition of some of the matters raised in his defence at trial. His defence was rejected by the trial judge because the Applicant was disbelieved. This is not a re-hearing of the evidence, and the trial judge's handling of the case appears to have been impeccable.

6. So far as sentence is concerned, the judge doubted the Applicant's age which was given at trial as 17, but as 18 on the charge sheet. The Applicant continues to maintain that he is 18. The judge obtained a medical report that indicated that the Applicant was 19 or older. In any event, for a man of his age this was an attempted robbery for which the Applicant could well have expected, under the guidelines in Mo Kwong-sang v The Queen (1981) HKLR 610, to have been sent to prison for up to five years. The judge took all relevant factors into account and the Applicant was extremely fortunate that the sentence of fifteen months' imprisonment on the third charge was not made to run wholly consecutively. This court has indicated that unless there are good reasons to the contrary such as totality, such a sentence should normally be imposed consecutively for that offence. In this case there were no good reasons, so that the sentence was, in the circumstances, very lenient.

7. For the reasons we have given, the applications are dismissed. They have been totally devoid of merit and, for this reason, we order four months' loss of time, which is to say that four months of the time the Applicant has spent in custody shall not count towards his sentence.

Representation:

Miss Polly Wan, SGC of the Department of Justice, for the Respondent.

Applicant in person.