HKSAR v. Ling Man Kwan

HCMA000009/2004

HCMA 9/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 9 OF 2004

(ON APPEAL FROM KCCC 12590/2003)

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Coram: The Hon Mrs Justice V. Bokhary in Court

Date of Hearing: 20 May 2004

Date of Judgment: 20 May 2004

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J U D G M E N T

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1.On 5 December 2003 before Stephen Smout Esq in the Magistrate's Court at Kowloon City, the Appellant, a man then aged 56, was convicted after trial on a charge of robbery and sentenced to two years' imprisonment. Three months of that sentence were made concurrent with, and the rest of it was made consecutive to, a nine-month term imposed on him on 15 September 2003 in another case. His appeal against sentence came on for hearing before McMahon J on 13 February 2004. He was then in person, and he said that he had meant to appeal against conviction as well but that the Correctional Services Department had omitted to do so on his behalf. McMahon J gave an extension of time for appealing against conviction. The matter was then adjourned. The Appellant has since been granted legal aid in respect of conviction only, and is now represented by counsel before me in his appeal against conviction. He is representing himself as far as his appeal against sentence is concerned.

2.The Appellant was charged that he had on 25 July 2003 at a park in Yau Ma Tei robbed a Mr Lam Chi-wing of $200 in cash, a Sony mobile telephone valued at $300 and a S. T. Dupont ballpen valued at $1,300. In his Statement of Findings the Magistrate adopted the very full oral reasons which he had given at the time when he convicted the Appellant. For a summary of the salient facts which the Magistrate found, it is convenient to quote this passage in his Reasons for Sentence:

"My findings of fact, inter alia, were that in a park in the early hours of the morning the appellant came across the victim, an acquaintance. The appellant demanded money from the victim on the pretext that a mobile telephone had previously purchased from the victim was out of order. He demanded repayment of the purchase price. Upon the victim's refusal to give the appellant his own mobile telephone as demanded by the appellant, the appellant assaulted the victim by fists and kicks for several minutes. When the victim was prostrate on the ground, the appellant stepped on his chest and took off the victim the properties mentioned in the charge. The victim was so physically affected by the assault as to soil his own trousers with urine and faeces. A hard object of unknown nature was used by the appellant to strike the victim's head making him dizzy."

3.As for the Appellant's evidence, which the Magistrate rejected, the gist of it may be taken from this passage in his Statement of Findings:

"Having ruled that he had a case to answer, the appellant elected to testify. He testified that he was playing chess in the park. PW1 watched him play. Previously the appellant had purchased 2 telephones from PW1. Neither telephone had worked properly. PW1 said that he only had 80HK with him and he asked the appellant to wait until he received his salary and then he would pay him back. The appellant expressed his concern to PW1 that he did not know where PW1 lived or where he could find him. PW1 offered to give him his pen as security. Someone approached PW1 and hit him casually a few times but it had nothing to do with the appellant who continued to play chess.

Under cross-examination the appellant testified that he previously had not seen PW1 for a year. The arrangement he reached with PW1 is that they would meet when PW1 had money so that PW1 could pay the appellant and retrieve his pen. No time or date was fixed."

The victim was PW1.

4.The Perfected Grounds of Appeal Against Conviction are these:

"1.	The learned magistrate failed to give any or sufficient weight to the findings in PW1's medical report which contradicts or shows major inconsistencies with his evidence.
2.	The learned magistrate erred in while accepting there were inconsistencies between the said medical report and PW1's evidence, he explained without basis such inconsistencies instead of giving the benefit of doubt to the Appellant.
3.	The learned magistrate erred in accepting the evidence of PW1 which contains major inconsistencies and/or unreliabilities and/or exaggerations to convict the Appellant."

5.The Magistrate's oral reasons, which he incorporated in his Statement of Findings, show that he gave careful consideration to the inconsistencies between the medical report and PW1's testimony. This is what the Magistrate said:

"I have taken into account the medical report produced in evidence as Exhibit P2, at defence counsel's request, in which the doctor therein stated PW1 claimed to the doctor that he was hit by someone with fists over the chest and abdomen. Now, PW1, in his testimony, described a more extensive beating, including kicks, and also injuries to other parts of the body besides the chest and abdomen.

The doctor was not called to give evidence and there was no evidence that his statement contained in the report as to what PW1 had said to him was a complete statement or just a summary of what PW1 had said. Even assuming the doctor intended that it be a complete account of what PW1 had said, that does not cause me to doubt the credibility or reliability of PW1.

I did not find it strange or remarkable that PW1's description of the assault upon him to the doctor, shortly after being beaten up, should contain less detail than his testimony. Nor does the fact the doctor discovered no fractures create a doubt in my mind as to PW1's reliability.

PW1 said that he sustained two fractures, one to a toe and one to a rib. The doctor refers to X-rays in his statement (that is, Exhibit P2) but they are chest X-rays. These would, of course, not show a fracture to the toe. PW1 is not a doctor, and if he has exaggerated the extent of the rib injury he suffered, I am sure that it is an honest mistake."

6.There is no reason to think that the Magistrate failed, whether in relation to the inconsistencies between the medical report and PW1's testimony or in relation to any other matter, to take full and proper advantage of seeing and hearing PW1 and the Appellant in the witness-box.

7.In my view, there is no basis on which to overturn this conviction, and the appeal against conviction fails.

8.I turn to the appeal against sentence. The Magistrate had proper regard to the Appellant's circumstances, saying this in his Reasons for Sentence:

"The appellant had 13 previous convictions, none similar although one was for a related offence, namely theft.

In mitigation it was submitted that the appellant was a 56 years old divorced and unemployed man. Most of his prior convictions were for drugs-related offences and this was his first conviction for robbery."

9.As for the circumstances of the offence, the Magistrate said this in his Reasons for Sentence:

"I took a very serious view of this offence. The victim was subjected to a severe beating over a period of time. The severity was borne out by the victim's soiling of his own clothing. A hard object was used to hit the victim's head. A starting point of 3 years' imprisonment for robbery involving such violence would not have been inappropriate and my view was that the proceedings could appropriately have been transferred to the District Court at an earlier time. The maximum sentence I could impose was one of 2 years' imprisonment. In view of the grave circumstances of the offence I took that maximum sentence as my starting point. The appellant was not a man of previous good character nor had he shown any remorse. Indeed, as I found, upon his apprehension by the police at the victim's identification of him, the appellant had threatened the victim with revenge. I saw no reason to depart from the starting point and I therefore sentenced the appellant to 2 years' imprisonment."

10.What the Magistrate did in regard to the totality principle is set out in the final paragraph in his Reasons for Sentence:

"The appellant was serving sentences totaling 9 months' imprisonment imposed on the 15th September 2003 for an offence of Possession of Dangerous Drugs and breach of a suspended prison sentence (KCCC 12589/2003 refers). I took into account the totality principle and it seemed to me just and appropriate that all except 3 months of the sentence I had imposed should be served consecutively to the existing sentences. I ordered accordingly."

11.In my view, the Magistrate had proper regard to the circumstances of the offender, the circumstances of the offence and the principle of totality.

12.In my view, the appeal against sentence also fails. Accordingly I dismiss the appeal, both as to conviction and as to sentence.

Representation:

Mr SUEN Kam-hee, instructed by the Legal Aid Department (appeal against Conviction out of time only), for the Appellant: LING Man-kwan

Appellant in person (appeal against Sentence)

Mr Raymond CHENG, GC of the Department of Justice, for the Respondent