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Hong Kong decisions
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The Hong Kong Court of Appeal refused leave to appeal against conviction and sentence for attempted robbery and resisting arrest, finding the defence case implausible.
The Court of Appeal refused leave to appeal against convictions for attempted robbery, rejecting complaints about identification, credibility, fresh evidence and alleged incompetence.
The Court of Appeal held the trial judge correctly found joint action and intent to treat the police shotgun as the appellant's for his purposes, properly applied Mo Kwong-Sang sentencing guidance given the involvement of a weapon and aggravating factors, and that the 7-year sentence for attempted robbery was not manifestly excessive; appeal dismissed.
Source excerpt
Appeal against sentence was allowed because the sentencing judge potentially incorporated the assault on the police officer into the illegal assembly sentence (risk of double‑counting) and failed to address whether the appellant was properly to be treated as a joint participant in the attempted robbery based on the video evidence alone; those defects required leave to appeal and re‑consideration of sentence.
Source excerpt
The Court allowed leave and allowed the appeal: although the psychiatric evidence did not positively establish insanity for the material time, the conviction was unsafe because the trial judge failed adequately to consider whether the appellant had the requisite intent to steal for attempted robbery and did not explain differences in treatment between the two counts; on the totality of the evidence there were real doubts as to intent and the appellant was entitled to benefit of those doubts, so the conviction and sentence for the second count were quashed.
Source excerpt
Leave to appeal against sentence was refused. The Court held that the judge’s starting points for attempted robbery and theft were not manifestly excessive.
The application for leave to appeal was refused because the trial judge gave correct and adequate directions on the voluntariness and exclusion of recorded interviews, on the fairness of the identification parade, and on the limited probative value of the hat and CCTV; the central disputes of credibility and identity were properly left to the jury, which was entitled to reject the confessions, accept the identification for count 4 and conclude by lawful comparison of CCTV that the offender in count 3 was the same person, and there was no arguable misdirection or legal error warranting leave.
Source excerpt
The Court quashed the conviction and 10-year sentence because the trial judge gave incorrect directions on duress by threats or circumstances and refused the prosecution's application for a retrial because the evidence was weak, the applicant's conduct was inconsistent with typical robber behaviour, the conviction was by a narrow majority, the likelihood of conviction on retrial was low, and the public interest did not justify remanding the case for retrial given the substantial effective custodial time the applicant had served.
Source excerpt
The Court allowed the appeal because the trial judge erred by including an instruction about the defendant's opportunity to avoid the threat (the 'escape' question) which was inappropriate and potentially misleading in a case properly characterized as duress of circumstances; that misdirection rendered the conviction unsafe and required quashing of conviction and sentence.
Source excerpt
The Court of Appeal refused leave to appeal against sentence for a carefully planned attempted robbery involving knives, multiple offenders and police resistance.
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