IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 77 OF 2000
(ON APPEAL FROM DCCC 891 OF 1999)
Coram: Hon Stuart-Moore VP and Leong JA
Date of Hearing: 24 May 2000
Date of Judgment: 24 May 2000
J U D G M E N T
Stuart-Moore VP (giving the judgment of the Court):
1. On 15 February 2000, the Applicant (D1 at trial), following his pleas of guilty to attempted robbery and remaining without authorityin Hong Kong before Judge Wright, was sentenced to a total of five years and three months’ imprisonment against which he now seeksleave to appeal. His co-defendant (D2) abandoned in writing a similar application some days ago.
2. The facts on which the judge sentenced are amply covered in his sentencing remarks which effectively describe the attempted robberyas having occurred at about 2.00 a.m. on 12 August 1999. The victim was a lone female who happened to be an off-duty police officerwho was waiting for a bus. Two men approached her. D2 threatened her with a screwdriver which he pointed at her body whilst his otherhand took hold of her neck. He demanded money while D1 attempted to get some money out of the victim’s pocket. When the victim struggled,she was stabbed although fortunately the injury caused was a minor one. D1 and D2 were, in due course, arrested. Both of them wereillegal immigrants and both were later identified by the victim.
3. In passing sentence, the judge said:
4. The judge rightly regarded the fact that D1 was of previous good character in Hong Kong as being of virtually no relevance. He thenconsidered what was said by the Court of Appeal in R v Mo Kwong-sang  HKLR 610 and cited a passage at page 611 which reads:
5. The judge considered that, whilst a higher starting point could be justified, a starting point of six years was appropriate for theattempted robbery with which we are concerned, and he then reduced that to four years to take into account the timely plea of guilty.He imposed a consecutive term of 15 months’ imprisonment for the second charge in accordance with well established authority. Onthis aspect, the Applicant has today stated that a number of other inmates have been given for this offence a concurrent or partlyconcurrent sentence but, while that may be so, the general rule has always been that a sentence of fifteen months for this immigrationoffence, following a plea of guilty, should normally be served consecutively to any other sentence for an offence which has beencommitted.
6. The Applicant in his grounds of appeal has stated that he believes he has been sentenced too heavily for the offence because otherswho have committed more serious offences of this kind seem to him to have received a lesser sentence than himself. Today, he madespecific reference to having come across an inmate who appears to have been sentenced in a way which makes the Applicant’s case appearto be too harsh. On this aspect, all that we need to say is that every case is different and we are only concerned with whether theApplicant’s sentence was a proper one.
7. The Applicant also asked this court to consider his family situation and, in his grounds of appeal, pointed out that he did not havea weapon in his possession and it was not himself that wounded the victim. On this aspect, the Applicant fails to appreciate that,when an offence is committed by two persons acting together in a common enterprise, each bears responsibility for the acts of theother person which are done in the course of that enterprise.
8. The judge explained his reasons for sentencing in the clearest possible terms and the sentence was wholly appropriate for a caseof this gravity. Accordingly, the application is dismissed.
9. It is an application which has no merit whatever and for this reason we shall order that three months of the time which the Applicanthas spent in custody shall not count towards his sentence.
Mr , Martin Hui, GC, of the Department of Justice, for the Respondent.
Applicant in person.