THE QUEEN v. MAN KWONG FAI AND ANOTHER

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicants pleaded guilty before Judge Cameron in the District Court to one charge of robbery. The 2nd applicant also pleaded guilty to a further charge of criminal damage. At the time of commission of these offences they were aged 16 and 17 respectively. The judge sentenced them both to 5 years imprisonment for the robbery and sentenced the second applicant to 6 months consecutive on the criminal damage charge. They both apply for leave to appeal against those sentences.

2. The agreed facts of the case were that a Filipina maid returning to the premises in which she was employed was,  about to open the door when the two applicants grabbed her around her neck from behind and using the keys she was holding, gained entry to the premises. The maid struggled and shouted for help. The applicants and another man responded by punching and kicking her and dragging her inside where they used rope and adhesive tape, which they had brought with them, to bind, gag and blindfold her.

3. Attracted by her cries a neighbour reported the matter by telephone to a watchman in the building. In the meantime the applicants searched the premises and stole money, two cameras, a walkman radio, some ornaments and other items of property. They then prepared to leave. By this time, however, the police had been alerted and had arrived outside the premises. The applicants and their companion became aware of the police presence and attempted to escape by climbing down the water pipe on the outside of the building.

4. The summary of facts which appears in the appeal record states that when the three men reached the window of flat 416 on the fourth floor of the building, they asked the occupant to open it to allow them to enter. When he refused to do so the second applicant used a pole to smash it. All three of them then threw at the police and reporters waiting in the street below various items including the cameras, the walkman radio and some coins and ornaments taken during the course of the robbery.

5. Four hours later they surrendered to the police and some of the items taken of the robbery were recovered from the 1st applicant. The maid suffered bruising to her cheek, back, chest and wrists. She was discharged from hospital after treatment.

6. On the first day of the hearing of this application Mr. Mulch and Mr. Wu, who appeared for the applicants, requested, with the support of Mr. Bruce for the Crown, that we adjourn the hearing for the purpose of calling for training centre and detention centre Reports. We consented to do so. The reports stated that both applicants were suitable for detention in either a detention centre or a training centre and that a period of disciplinary training followed by compulsory after-care supervision would be beneficial to both of them.

7. Mr. Mullick submitted that the sentence of 5 years' imprisonment passed on the 1st applicant was manifestly excessive and wrong in principle in the light of his previous clear record, his youth, his plea of guilty on plea day and the fact that he did not carry or use weapons in the course of the robbery. Apart from the fact that he had a previous conviction for theft in 1986 these mitigating factors also applied to the 2nd applicant.

8. On a consideration of the information contained in the reports, the background of the applicants, the attitude they have demonstrated while in custody and the fact that both have strongly supportive families, we have come to a conclusion that this is an exceptional case in which it would be appropriate to order detention in a training centre. We therefore grant the applications and treat them as the hearing of the appeals, allow the appeals, quash the sentences of imprisonment and order that each applicant be detained in a training centre.