HKSAR v. Wong Wai

CACC 386/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 386 OF 2004

(ON APPEAL FROM DCCC NO. 757 of 2004)

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 BETWEEN

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Before: Hon Yeung & Yuen JJA in Court

Date of Hearing:   29 November 2005

Date of Judgment:  29 November 2005

Date Handing Down Reasons for Judgment: 5 December 2005

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Reasons for Judgment

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Hon Yeung JA (giving reasons for judgment of the Court):

1.On 29 November 2005, we granted leave to the applicant– Wong Wai to appeal against sentence. Treating his application as the appeal proper, we allowed his appeal and reduced his total sentence from 61 months to 49 months’ imprisonment. We indicated that we would hand down our reasons in writing and this we now do.

Background

2.The applicant and On Ling entered Hong Kong illegally from the Mainland on 9 June 2004. The following evening, shortly after 8 o’clock, they came across Mr Chan Lin-fai who was approaching a bus stop in Tai Po to wait for a bus.

3.On Ling pointed a roll of newspaper at Mr Chan’s stomach and declared robbery. Mr Chan got frightened and fell onto the ground, dropping his bag containing some personal properties and a small amount of cash, which the applicant took before fleeing with On Ling.

4.The police apprehended both the applicant and On Ling shortly afterwards. There was in fact no weapon in the roll of newspaper used to threaten Mr Chan.

5.However, the police found a flick knife, 18 cm in length on the applicant’s person.

6.The applicant and On Ling were jointly charged with robbery and each also faced a separate charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

7.For the flick knife found on his person, the applicant was additionally charged with the offence of possession of an offensive weapon in a public place.

8.The applicant and On Ling pleaded guilty to all the charges before the late Judge Day in the District Court.

9.On Ling was sentenced to 40 months and 15 months’ imprisonment respectively for the charges of robbery and unlawfully remaining in Hong Kong to run consecutively.

10.The applicant received identical sentences of 55 months’ imprisonment for the robbery and unlawfully remaining in Hong Kong charges. He was further sentenced to 8 months’ imprisonment for possessing the offensive weapon with 6 months to run consecutively. The total sentence on the applicant is 61 months’ imprisonment.

11.On 4 January 2005, On Ling’s sentence on the robbery charge was reduced on appeal to 32 months’ imprisonment.

12.The Court of Appeal took the view that the 5-year starting point adopted by the judge was manifestly excessive and emphasized that “the roll of newspaper was not a weapon and did not conceal one. The victim was never at risk of any physical harm form its use. In our view, if the same sentence is given whether a knife is displayed or where a roll of newspapers is displayed albeit as a dummy weapon, there would be little disincentive to the actual use of a knife.” ( HKSAR v On Ling CACC 386 of 2004 at paragraph 9 of the judgment)

The Application

13.On 18 July 2005, the applicant sought leave to appeal against the sentence of 61 months’ imprisonment out of time, clearly because of the decision in HKSAR v On Ling (supra).

14.Mr Andy Hung, who was also counsel for the appellant in On Ling, urged us to adopt similar approach. He further argued that the 12 months’ starting point for possession of the offensive weapon and, thus the 8 months’ imprisonment after a guilty plea was also excessive. He suggested that a more suitable starting point was 6 months.

15.Mr Hung also complained about the totality of sentence.

16.Mr Paul Ho, on behalf of the respondent, conceded, in the light of the Court of Appeal decision in HKSAR v On Ling (supra), that the sentence on the robbery charge should be reduced to 32 months’ imprisonment.

17.Mr Ho, however, argued that the 8 months’ imprisonment after a guilty plea on the offensive weapon charge was not excessive. He emphasized that the maximum term for the offence is 3 years’ imprisonment.

18.Both counsel referred us, in their written submissions, to other cases on sentence for possession of offensive weapon. We did not find it necessary to refer to those cases. Each case must be considered on its own facts.

19.The flick knife found on the applicant’s person was a small one. There was no suggestion that he had ever used it for any unlawful purpose. The applicant does not have any previous conviction.

20.In the circumstances and bearing in mind the totality principle, we were persuaded that the additional sentence of 6 months’ imprisonment on the offensive weapon charge was also excessive.

21.For the same reasons given in HKSAR v On Ling, we reduced the sentence on the robbery charge to 32 months’ imprisonment. We did not disturb the consecutive sentence of 15 months’ imprisonment on the unlawfully remaining in Hong Kong charge.

22.However, of the 8 months’ imprisonment on the offensive weapon charge, we ordered only 2 months to run consecutively.

Conclusion

23.We granted leave to the applicant to appeal against sentence out of time and treating the application as the appeal proper, we allowed the appeal.

24.The sentence on the robbery charge was reduced from 40 months to 32 months’ imprisonment to run consecutively to the 15 months on the charge of remaining in Hong Kong without authority.

25.We also ordered that of the 8 months’ sentence on the possession of offence weapon charge, only 2 months would run consecutively to the other sentences. The total sentence was therefore reduced from 61 months to 49 months’ imprisonment. 

Mr Paul Ho SGC of the Department of Justice for the Respondent.

Mr Andy Hung assigned by the Director of Legal Aid for the Applicant.