HKSAR v. Wong Cho Wa

CACC000334/1997

IN THE COURT OF APPEAL

1997, No.334
(Criminal)

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Coram: Hon. Liu, J.A., Mayo, J.A. & Stuart-Moore, J.

Date of Hearing: 12 November 1997

Date of Judgment: 12 November 1997

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J U D G M E N T

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

1. The Applicant was convicted in the District Court on 5th June 1997 of one charge of robbery contrary to s.10(1) and (2) of the Theft Ordinance, Cap.210, following a contested trial before His Honour Judge Sweeney. The Applicant pleaded guilty at the outset of his trial to a second charge which alleged that he remained in Hong Kong without authority from the Director of Immigration having landed here unlawfully contrary to s.38(1)(b) of the Immigration Ordinance, Cap.115. On the first charge the Applicant was sentenced to three years' imprisonment and on the second to twelve months' imprisonment to be served consecutively. He now seeks leave to appeal against his conviction for robbery. We say that because, despite his stated intention to withdraw his application, in the same breath we have heard him say that he is, to this day, denying guilt on the robbery charge. The Applicant also seeks leave to appeal against the sentence of four years' imprisonment that he received.

2. The facts relate to a robbery of a pedestrian who was approached in Wylie Road at 1.25 a.m. on 19th January 1997. The prosecution's case was that this Applicant, who was the second Defendant at trial, and an accomplice each took some part in taking a total of $600 from the victim. The victim had been grabbed and one of the two robbers pretended to have a weapon concealed in his jacket. The robbers then ran away towards Princess Margaret Road. Fortunately the victim was able quickly to find police and, within 10 minutes, the two alleged robbers were found still very close to the scene of the crime. The money was recovered in the same denominations of notes that had been stolen. The Applicant was later interviewed with the assistance of a Mandarin-speaking interpreter and he maintained his right to silence.

3. At the trial this Applicant said that he had approached the alleged victim but in order only to beg from him. He said that he was surprised at the victim's generosity. This had not been previously put to the victim and so the Judge, to ensure that there had been no misunderstanding, permitted the victim to be recalled. Having heard all of the evidence, the learned Judge was in no doubt as to where the truth was to be found. He gave careful attention to the detail of the case in his Reasons for Verdict. There is nothing which would cause us to disturb those findings.

4. On the question of sentence, the learned Judge found that this Applicant was the leader, despite the fact that he was younger than his co-defendant. In our view his approach in taking four years as a starting point for the robbery was correct. In the event, this was reduced to three years to take account of previous good character and the fact that no weapon was used, although the impression of a weapon was given. Equally, the sentence on the second charge cannot be criticized. The trial Judge adopted the normal tariff of 15 months for this kind of offence and he took into account the totality principle by reducing that sentence to 12 months' imprisonment.

5. There is no merit whatsoever in this application so far as it concerns conviction or sentence and it is dismissed.

Representation:

Mr. D.G. Saw, S.A.C.P. & Miss Winsome Chan, G.C. (D.P.P.) for the Respondent.

Applicant in person..