Calvo Raul R. v. R.

CACC000033/1997

IN THE COURT OF APPEAL

1997, No.33
(Criminal)

^{____________________}

^{____________________}

Coram: Hon. Power, Ag. C.J., Mayo, J.A. and Gall, J.

Date of hearing: 25 June 1997

Date of judgment: 25 June 1997

_______________

J U D G M E N T

_______________

Power, Ag. C.J.(giving the judgment of the Court):

1. This application faced two counts, one of attempted robbery and one of assault occasioning actual bodily harm. He pleaded guilty to the assault charge but not guilty to the attempted robbery. He was found guilty after trial in the District Court before Judge Chung of that charge and sentenced to imprisonment for three years. He now seeks leave to appeal against both conviction and sentence.

2. It was the Crown case that the applicant had assaulted a jewellery salesman at the Tsimshatsui MTR station and had attempted to snatch his sample bag which contained a considerable quantity of valuable jewellery. An MTR staff member and passers-by intervened, the police were called and the applicant was arrested. The witnesses who gave evidence about the incident said that they had seen the attack and the attempt to snatch the bag.

3. The applicant gave evidence saying that he did not attempt to rob the victim but that he had mistaken the victim for someone who he regarded as an enemy and that he had, under this mistaken impression, assaulted him.

4. Given the strength of the Crown case, particularly the evidence which came from the independent witnesses, his story was, not surprisingly, rejected by the trial judge. Before this court he maintains his explanation that it was all a case of mistaken identity and that there was no attempt to rob. There is nothing that occasions us any doubt as to the propriety of the conviction. The evidence was overwhelming. The application must be dismissed.

5. As to sentence the applicant says that three years was too heavy and that he has family responsibilities which should be taken into account. The trial judge said when sentencing:

"In all the circumstances, I consider that an immediate custodial sentence is the proper form of sentence. I further consider that 4 years' imprisonment would have been the proper starting point if this had been a complete offence. Taking into account that this was only an attempted offence, and that the violence used was only with bare hands, I consider that the proper starting point would be 3 years' imprisonment. Since the Defendant did not plead guilty to this charge and does not have a clear record, he is not entitled to any discount for either of these matters. The sentence for Charger 1 is therefore 3 years' imprisonment."

The judge then imposed a concurrent sentence of nine months on the assault charge. These were, in the circumstances, entirely proper sentences. Nothing has been suggested would allow us to interfere. This application must also be dismissed.

Representation:

Mr. D.G. Saw, Q.C. & Mr. Johnny Chan (Crown Prosecutor) for the Respondent.

Applicant in person.