ATTORNEY GENERAL v. POON CHI TAK

IN THE COURT OF APPEAL OF HONG KONG

APPLICATION FOR REVIEW NO. 14 OF 1986

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BETWEEN

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JUDGMENT

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Penlington, J.

1. The facts of this matter, as agreed at the trial, were that  on the 29th January 1986 at about 6:30 a.m. a Mrs Thatsunan Phot was in her home at Ping Shek Temporary Housing Area with her two young children. Her husband had left to go to work at 5:30. It was still darks.

2. Suddenly two men, one of them being the respondent, rushed into the house. Mrs Phot was gagged and blindfolded, a knife was placed against her neck and her hands were tied. The premises were ransacked and a gold bracelet and ring was taken from Mrs Phot's person. However fortunately a neighbour, Mr Chan Sui-ching, who is to be commended, heard the sound of the two children crying and phoned the police. On arrival they saw both men emerging from the premises One was arrested but the respondent, escaped.

3. Later that same day the respondent pawned a necklace which he obtained in the premises and he was eventually located, using the  pawnbroker's record. He was recognised by two police officers of the party who had gone to the scene and made a statement admitting the offence. That was challenged at the trial but was admitted in evidence. After that he changed his plea to one of guilty.

4. The other accused, who was aged 25, pleaded guilty throughout. He had- a clear record and received a sentence of 5½ years imprisonment, the trial judge having considered the guidelines set down in Mo Kwong-sang⁽¹⁾.

5. The respondent was sentenced to training centre and the Attorney General now seeks review on the grounds that the sentence was wrong in principle, and that a sentence of imprisonment, on the facts of this case, should have been imposed.

6. This Court has said on many occasions that robbery in domestic premises, particularly where it involves the tying up and gagging of occupants and the use of weapons, will be met with heavy sentences. In Mo Kwong-sang 7 years is suggested as a starting point but that may be increased if there are aggravating factors.

7. The only matters, which this respondent can rely on is that he was, at the time of the offence, 19 years of age, he has been a drug addict arid he pleaded guilty, albeit at a late stage. While clearly the age of the accused is a factor to be taken into account and the Courts are reluctant to sentence young persons to long periods of imprisonment, there have to be circumstances which are exceptional when a sentence of imprisonment will not follow conviction for offences of this sort. Youth is not in itself such an exceptional circumstance.

8. In R v. Chung Hon-ping ⁽²⁾ the appellant was 18 years of age and had been convicted after trial of robbery on a beach. Despite a clear record the Court there said that a sentence, in those circumstances, of four years imprisonment was appropriate. The only cases where a training centre sentence has been considered proper for serious robbery was in R. v. Lee Chi-cheong ⁽³⁾ and R. v. Kong Man-wing⁽⁴⁾.   In Lee Chi-cheong this Court found the appellant should have been sentenced to four years imprisonment but, because the other joint offenders had received lower sentences but had not appealled, a sentence of 18 months was proper. In view of the likely length of a training centre detention, the Court did not interfere. That is a case to be considered very much on its own facts.

9. In R. v. Kong Man-wing a youth of 16 who had robbed a taxi driver was sent to training centre. While robbery of taxi drivers is serious it is less so than that of a woman in her own home. The appellant in that case was 16 years old, much younger than the respondent,here and had a clear record.

10. The other factor, the respondent's drug dependance is also not a factor which makes the case exceptional. He was attending a methadone clinic and could have continued to do so if he wished. He is no longer addicted.

11. The respondent is entitled in the normal way to a discount on sentence for his plea of guilty, taking into account the stage of the proceedings when it was made. In all the circumstances of this case, and this being a review of sentence we consider that a sentence of four years imprisonment is proper.

12. The application will accordingly be granted, the sentence of detention in a training centre set aside and a sentence of four years imprisonment passed in its place.

(1)   [1981] H.K.L.R. 610

(2)    Cr. App. 518/84

(3)    Application for Review 2/84

(4)    Crim App. 409/85