HKSAR v. Li Man Po

CACC000393/2001

CACC 393/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 393 OF 2001

(ON APPEAL FROM DCCC 634/2000)

____________

____________

Coram: Hon Stock JA and Yeung J in Court

Date of Hearing: 27 February 2002

Date of Judgment: 27 February 2002

_________________

J U D G M E N T

_________________

Hon Yeung J (giving the judgment of the Court) :

1.The applicant Li Man Po pleaded guilty to the 1st charge of robbery and the 2nd charge of remaining in Hong Kong without the authority of the Director of Immigration and was sentenced to the respective terms of 3 years 4 months and 15 months imprisonment. The judge ordered 8 of the 15 months imprisonment in respect of the 2nd charge to be served consecutively making a total term of 4 years. On 19 December 2001 Stuart-Moore JA refused the applicant leave to appeal against the sentences. He now renews such application out of time.

2.The robbery occurred in Fanling New Territories on 27 May 2000. The victim, Ms Wong Mei-kuen was walking home when the applicant dashed out from the bush on the side of the road and declared robbery. He was carrying a knife. After Ms Wong surrendered her handbag, the applicant searched it in front of her and took a small sum of cash as well as a mobile phone.

3.The applicant was arrested the next day by a police officer for unlawfully remaining in Hong Kong. He was still carrying the knife and the properties taken from Ms Wong who subsequently identified the applicant and most of the properties taken from her.

4.The applicant is only 23 and is a native of Hunan. He came to Hong Kong illegally to look for a job in order to earn some money to meet his financial obligation.

5.The judge adopted a starting point of 5 years for the robbery charge and reduced it by one-third on account of the guilty plea. The 15 months imprisonment was described as "the habitual sentence" for coming to Hong Kong illegally and part of it was ordered to run concurrently as the applicant was co-operative.

6.The judge noted that the knife was not used to harm Ms Wong who suffered no injury. The judge also noted that the value of the properties taken from Ms Wong was small and they were recovered.

7.The applicant seeks leave to appeal against the sentences out of time on the basis that he knew nothing about life in Hong Kong and is not used to many aspect of prison life such as food and language. He also complains of not being able to see his family. He informs the court that he was a farmer and was originally told by his parents to go to Shenzhen to take his girlfriend back to his village. Somehow he was asked to come to Hong Kong. He claims to be innocent of the robbery offence.

8.The applicant had pleaded guilty to the charges and had admitted the facts in support of the charges. Ms Wong positively identified him as the robber. The suggestion that he only pleaded guilty on the advice of his lawyer is not what we can entertain in this application.

9.The respective sentences of 3 years 4 months and 15 months imprisonment are entirely appropriate. The total sentence of 4 years is neither manifestly excessive nor wrong in principal.

10.The complaints of not being used to the food and language and not being able to see the family are not special grounds for any further reduction of sentence. Anyone who chooses to come to Hong Kong to commit serious offence such as robbery must expect to be dealt with appropriately according to the law and practice in Hong Kong. He must also expect the logical consequence of having to serve his sentences in Hong Kong and the associating hardship.

11.In HKSAR v. Hong Chang-chi CACC 187 of 2001, this court stated in no uncertain terms that being a foreigner or coming from another place "could not amount to mitigation to any substantial degree and should not, on that account, be given any specific discount."

12.The matters raised by the applicant are not valid grounds for interfering the sentences imposed. The application for leave to appeal out of time is refused.

Representation:

Mr Eiddie Sean, SGC of the Department of Justice, for the Respondent

Applicant in person, present