THE QUEEN v. YIP YUEN CHING

1986, No. 615
(Criminal)

IN THE COURT OF APPEAL

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JUDGMENT

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Jones, J.

1. The applicant Yip Yuen-ching seeks leave to appeal against, his sentence of 4 years imprisonment passed by Judge Rattigan at the Tsuen Wan District Court on the 25th November 1986, following his conviction for an offence of conspiracy to rob.

2. The facts reveal that at about 1:30 a.m. on the 20th June 1986, a party of police officers who had been keeping observation on the roof of Hang Wang Building at Ma Wang Road stopped a private car which had five occupants, one of whom was the applicant. The police searched the car and found on the back seat a beef knife which was inside a paper sheath. After the police announced that the five occupants were under arrest, they all ran away, but four of them including the applicant were shortly afterwards, apprehended. The fifth occupant managed to make good his escape.

3. In a cautioned statement that he made to the police, the applicant admitted that he and the other occupants had intended to carry out a robbery on that morning.

4. The applicant is a single man, aged 19. He has previous convictions in 1984 for disorderly conduct, assaulting a police officer and resisting arrest, in respect of which he was sentenced for the first offence to a term of imprisonment for 3 months which was suspended for a period of 15 months and to a fine on the other charges.

5. Before sentencing, the trial judge obtained reports from the probation officer and also from the Commissioner of Correctional Services. The probation officer submitted a favourable report in which a period of 18 months pro.bation was recommended. The report from the Commissioner of Correctional Services stated that the applicant is medically unfit .for detention in a detention centre, but suitable for detention in a training centre. This was a serious offence as referred to by the trial judge in his reasons for sentence, and we agree that probation in these circumstances is inappropriate. However, it appears that the trial judge did not give proper attention to the reports that he obtained from the probation officer and the Commissioner, nor does he appear to have considered the provisions of section 109(A) of the Criminal Procedure Ordinance with regard to the imprisonment of young offenders between the age of 16:and 21.

6. In all the circumstances, we consider that the sentence of imprisonment of 4 years was unduly harsh and that a period of training in a training centre should have been imposed. Accordingly we grant leave to appeal against sentence and allow the appeal by substituting a period of detention in a training centre for the sentence of 4 years imprisonment.