HKSAR v. LEE WAI

CACC000581/1999

CACC 581/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 581 OF 1999

(ON APPEAL FROM DCCC 877 OF 1999)

BETWEEN
HKSAR Respondent
AND
LEE WAI Applicant

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Coram: Hon. Stuart-Moore VP, Mayo and Wong JJ A

Date of Hearing: 7 January 2000

Date of Judgment: 7 January 2000

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 10 November 1999, the Applicant pleaded guilty in the District Court before Judge Chua to a charge of robbery and a second chargeof remaining in Hong Kong without authority. He was sentenced to 3 1/2 years’ imprisonment on the first charge and to 15 months onthe second, with 12 months ordered to run consecutively. The Applicant now seeks leave to appeal against his overall sentence of4 1/2 years’ imprisonment for reasons which appear mainly to relate to his domestic circumstances and his particular concern forlooking after other members of his family.

2. The facts were very straightforward. The robbery in question was a nasty one in which he and two others attacked and robbed Ho Wai-ming,the victim, as he made his way to work using a subway on 23 August 1999. He was first of all kicked in the back. He was then punchedin the eye, and this was followed by other kicks and blows from the three men in the group attacking him. He was hit also with anumbrella. The Applicant snatched a mobile telephone and some cash from the victim, and it was not until three days later that hewas found by observant police officers who noticed that he was acting suspiciously. He was questioned and admitted having sneakedinto Hong Kong by climbing over the mountains. In his possession was the stolen mobile telephone which the victim was able to identifyand, more importantly, the victim was also able to identify the Applicant at an identification parade.

3. The Applicant, to his credit, was cooperative with the police although he did try to make out that he was only 18 years old in thebelief that he would receive a lighter sentence if it was thought that this was really his age. He did later admit that he was 22years old.

4. The Applicant will have been well aware before he came to Hong Kong that it would not have been possible for him to get a job inHong Kong without an identity card. This was the view taken by the trial judge. Indeed, she went on to conclude that the whole purposeof the Applicant’s visit to Hong Kong was to rob law-abiding citizens of their property because it was impossible for the Applicantto work here himself. She described the offence as a vicious assault where gratuitous violence had been used. The judge said:

“Commensurate with the violence you and your companions inflicted on your victim, I use a starting point of 5 years and 3 months.Had you had a weapon, you can be sure I would have started at 7 years. This is discounted by one-third for your plea, which takesthe sentence down to 42 months.”

5. In our view, the judge’s sentence cannot be criticised. There is no merit in the application and it is dismissed.

(M. Stuart-Moore) (Simon Mayo) (Michael Wong)
Vice-President Justice of Appeal Justice of Appeal

Representation:

Mr G. DiFazio, SGC, of the Department of Justice for the Respondent.

Applicant in person.