Case Detail

HKSAR v. LAW KIT

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1251-EN-1997-11-05

HKSAR v. LAW KIT

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CACC000156A/1997

IN THE COURT OF APPEAL	1997, No. 156
	(Criminal)

BETWEEN
	HKSAR	Respondent
	AND
	LAW KIT	Applicant

-----------------

Coram: Hon. Power, V-P, Mayo, J.A and Stuart-Moore, J in Court

Date of hearing: 5 November 1997

Date of delivery of judgment: 5 November 1997

-----------------

JUDGMENT

-----------------

Mayo JA giving the judgment of the Court:

1. The Applicant sought leave to appeal against the sentence of 6 years' imprisonment imposed upon him for robbery after he pleaded guilty to the offence. This sentence was ordered to be served consecutively to a sentence of 15 months' imprisonment imposed upon him for remaining in Hong Kong without the permission of the Director of Immigration.

2. On 13th May last the Applicant filed a notice of his abandonment of his appeal. He now seeks leave to withdraw this notice.

3. The Applicant has set up in some detail what he claims to be the circumstances of the case and particulars of his family background.

4. Suffice it to say that a number of the 'facts' he refers to are considerably at variance with the agreed facts upon which the sentencing Judge passed sentence.

5. According to the agreed facts the Applicant and another man Mr. Wong Yuk came to Hong Kong as illegal immigrants. As they wandered over the hills they came upon an old air rifle which they picked up. When they got to a main road, they hailed a taxi and directed the driver to take them to an address at Tai Po.

6. The taxi driver, who suspected that they were illegal immigrants told them that there might be a road block ahead.

7. Wong Yuk demanded money from the taxi driver while the Applicant held the air rifle. This frightened the driver who gave Mr. Wong HK$30 on condition that he and the Applicant got out of the taxi. The driver reported the incident to the police and shortly after this the Applicant was arrested with the air rifle. Mr. Wong succeeded in making good his escape.

8. Although this is not stated in the Applicant's letter, we entertained an application for leave to appeal against sentence from Mr. Wong who was subsequently caught and sentenced to six years' imprisonment. On considering the matter as a whole and for the reasons given in our judgment we allowed the application and reduced Mr. Wong's sentence by a year. The Court advised the Applicant of this and this appears to have prompted the present application.

9. For the reasons we gave in our judgment in Mr. Wong's case we did not regard this as the most serious case of its type. In particular we felt that the sentencing Judge, Wong J, did not take into account the fact that the Applicant was serving a sentence of imprisonment at the time.

10. In all the circumstances we feel that the interests of justice would be served by making a similar order in this case to the one we made for Mr. Wong and order that one year of the sentence should be served concurrently with the term he was already serving.

11. To achieve this we grant leave for the notice of abandonment to be withdrawn and treating his application for leave to appeal against sentence as the appeal we make an order that one year of the sentence imposed on the robbery count be served concurrently with the sentence of 15 months' imprisonment for remaining in Hong Kong without the permission of the Director of Immigration. The overall effect of this is that the Applicant will now serve a total sentence of 6 years 3 months' imprisonment. The appeal succeeds to this extent.

(N.P. Power)	(Simon Mayo)	(M. Stuart-Moore)
Vice-President	Justice of Appeal	Judge of the Court of First Instance

Representation:

Mr. Liu Yuen-ming, SGC (D.P.P.) for Respondent

Law Kit, Applicant in person

CACC000156/1997

IN THE COURT OF APPEAL

1997, No. 156

(Criminal)

_______________

BETWEEN
	HKSAR	Respondent

	and

	WONG YUNG	Applicant

_______________

Coram: Hon Power V-P, Mayo JA in Court

Date of hearing: 25 July 1997

Date of judgment: 25 July 1997

_______________

J U D G M E N T

_______________

Mayo JA giving the judgment of the Court:

1. The applicant together with another man was charged with two offences. The first was robbery and the second was possession of arms without a licence. He had prior to this been charged with remaining in Hong Kong without the permission of the Director of Immigration. He had pleaded guilty to this offence and had been sentenced to 15 months' imprisonment. Initially he and his co-accused had pleaded not guilty to the two offences.

2. During the course of the trial the applicant indicated his wish to change his plea. He also indicated a willingness to become a prosecution witness and give evidence against his co-accused. It would appear that this may well have been one of the reasons why his co-accused then decided to change his plea.

3. In this connection both men pleaded guilty to robbery and the second count was not proceeded with.

4. The applicant was sentenced to 5 years' imprisonment which the judge ordered should run from the expiration of the applicant's sentence of 15 months' imprisonment on the immigration offence. The applicant seeks leave to appeal against this sentence.

5. The facts of the case were that the applicant and his co-accused had just arrived in Hong Kong as illegal immigrants. While they were walking over the hills they saw an old air rifle and picked this up. They went on to the road at Tai Po. They saw a taxi and hailed it. The taxi stopped and they got in. They asked to be taken to Kowloon. The taxi driver struck up a conversation with the men, and informed them that there may be a police road block ahead. The co-accused said "the worst was to die with them". The taxi driver could see the barrel of the air gun and was very frightened. He suggested that the men should alight from the taxi. The men said that they were hungry and demanded several hundred dollars to enable them to purchase food. The taxi driver agreed to give them money if they got out of the taxi. This was agreed and he gave them $30. He made a report to the police who arrested the men a short time later.

6. Wong J adopted 8 years as his starting point. Because the plea came at a very late stage he was only prepared to give a 25% discount for it. However he did make a further reduction so as to give credit for the offer to give evidence against his co-accused thus resulting in the sentence of 5 years' imprisonment.

7. In his grounds of appeal the applicant relies on the following matters:

1. The absence of force.
2. The small amount involved.
3. The fact that the air gun could not have been used and that it had not been his intention to threaten the taxi driver with it.

4. He was only seeking humanitarian assistance.
5. His plea and offer of assistance and
6. That the sentence should have been made concurrent to the term he is presently serving.

8. All of these matters referred to were before Wong J. It is also true to state that the judge accepted that the applicant had hitherto been a person of good character.

9. There is some merit in the contentions which have been advanced. It could be said that the air gun was not a particularly lethal weapon. In addition to this we consider that the judge perhaps did not attach sufficient weight to the fact that the applicant was already serving a sentence of imprisonment. We have decided that the most appropriate course to adopt would be to make 1 year of the sentence he was serving concurrent to the sentence which was imposed upon him.

10. The result of this would be that the total of 6 years 3 months' imprisonment would be reduced to 5 years 3 months. Treating the application as the substantive appeal we allow the appeal to this extent.

(N.P. Power)	(Simon Mayo)
Vice-President	Justice of Appeal

Representation:

Mr Kevin P. Zervos SGC (DPP) for Respondent

Wong Yung - Applicant in person