ATTORNEY GENERAL v. WAN WING TAK

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

Application for Review No. 7 of 1993

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the Court.

2. On 22 June 1993, the Respondent was convicted on his own plea of one charge of possession of offensive weapon in a public place, Count 1, and three counts of robbery, Counts 3, 4 and 5 respectively. He was sentenced to be detained in a Drug Addition Treatment Centre on each count, the sentences were ordered to run concurrently.

3. The facts are as follows.

4. In the evening of the 5th of September last year, a police party saw the Respondent in a lift lobby. Upon being searched, the Respondent was found to have in a bag carried by him a folding knife. When he was asked the purpose for which he was carrying the knife, the Respondent asked for a chance. Upon being further questioned, he said that he had the knife because he wanted to find some women to rob. In a cautioned statement taken at a later stage, he admitted to two robberies committed by him on the 23rd and 28th of August respectively.

5. The facts of the 3rd Count were that at about 9:20 p.m. on the 23rd of August, inside the lift in a housing estate, the Respondent threatened a woman with a melon knife and demanded money from her. She handed over $410 in cash and then the Respondent made good his escape.

6. Count 4 related to an incident at 10:55 p.m. on the same evening inside a lift in another block of the same housing estate. The Respondent followed a lady into the lift, took out a knife and declared robbery. He stole from her a gold necklace and also $1,700 in cash.

7. The last robbery, subject matter of the 5th Count, was committed at 10:50 p.m. on the 28th of August, also inside the lift of yet another housing estate. The Respondent threatened the victim with a knife and took away from her her gold necklace and $20 in cash.

8. In her Reasons for Sentence, the learned trial judge, Judge Chua, noted that the Respondent was 30 years old and had a clear record. She also noted that he had been a drug addict for eleven years and his habit required him to find $500 per day to spend on drugs. The trial judge found that that was the reason for the robberies.

9. A Probation Officer's Report was called for and that report confirmed the observation of the trial judge. A Hei Ling Chau Addiction Treatment Centre Report was also called for and the conclusion of the Intake Officer as stated in the report was that the Respondent was a long-time drug dependant and that he had never been sent to a DATC for treatment before. The Intake Officer went on to say: "It goes without saying that if he is successful in giving his drug habit up, he will restore his normal life; it will be of benefit to the defendant as well as to the best interest of his family". Mr Peter Ip, Counsel for the Respondent, makes four main points on behalf of the Respondent. He submits that a sentence of detention in a Drug Addiction Treatment Centre in a case of robbery is not wrong in principle, and he draws our attention to the observation of Briggs, CJ, in Re Application for Review of Sentences (1974) HKLR 55 at p. 61.

10. Relying on the same case, it is contended that a Court might pass a sentence for DATC treatment in a case where no violence is used, no weapon displayed, and where there is no accomplice and where the desire of the offender to cure himself of his addiction is proved to the satisfaction of the Court.

11. Mr Ip draws our attention to the facts of the robberies in this case, and stresses that there was no actual violence used or harm inflicted on any of the lady victims and that there was no accomplice. Referring to the well-known case of MO Kwong-sang v. The Queen (1981) HKLR 610, Mr Ip argues that sentencing tariffs, particularly sentencing tariffs as laid down in the MO Kwong-sang case, are only a guideline and not a strait-jacket.

12. He draws our attention to Section 4(1) of the Drug Addiction Treatment Centres Ordinance, Cap. 244, which provides that: -

"Where a person is found guilty of a relevant offence and the court is satisfied that in the circumstances of the case and having regard to his character and previous conduct it is in his interest and the public interest that he should undergo a period of cure and rehabilitation in an addiction treatment centre, the court may, in lieu of imposing any other sentence, order that such person be detained in an addiction treatment centre."

13. Finally, the mitigating factors in respect of the Respondent had been referred to, namely, his previous good character, his plea of guilty and the background report which I have alluded to.

14. Mr Zervos, Counsel for the Attorney General, arguing in support of the Application for Review before us that the sentences imposed by the trial judge in the Court below were manifestly inadequate and wrong in principle. He makes three main points.

15. Firstly, there was a multiplicity of robberies committed in a lift at knife point. In the case of R v. WONG Wai-por, Cr. App. 464 of 1985, it was suggested that as a guideline for a normal lift robbery, the sentence should be one of five years after trial. In MO Kwong-sang (supra), it was suggested that in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, the sentence after trial should normally be 5 years. It was suggested that an additional year could be imposed if the robbery was committed inside the lift.

16. The second main point advanced on behalf of the Attorney General was that the trial judge erred in giving undue regard to the Respondent's history of drug addiction. It would appear that the trial judge was saying that the robberies could be excused because of his need to obtain money to satisfy his drug addiction. It is clear from the judgment of Roberts, CJ, in The Queen v. YAU Kwok- tung (1987) HKLR 782 that the fact that the purpose of a robbery was to secure money to buy dangerous drugs has never been a mitigating factor, vide 784 A and B. In the case of R v. WONG Sai-cheong, Application for Review No. 1 of 1985, Li, VP, sitting in the Court of Appeal, said that the order to a drug treatment centre, although not wrong in principle, should be made only in very rare and exceptional circumstances. That also was a case of lift robbery.

17. The third main point advanced in support of the Application for Review is that the possession of an offensive weapon and the offences of robbery were distinct and separate offences. Relying on The Queen v. TONG Hoi- fung (1988) 1 HKLR 610 at p. 611, it is argued that where there is more than one offence of a similar nature committed at different times, it is right for the Court to award a higher sentence than if there had only been one offence. The effect of imposing four identical concurrent sentences in the present case was such that no additional penalty was imposed in respect of three of the offences. Whilst it was conceded that the sentences on Charges 3 and 4 might perhaps be ordered to run concurrently as the robberies thereunder could be regarded as forming part of the same transaction, the third robbery was certainly an offence quite separate and distinct from the other two.

18. We have given careful consideration to the facts and all the surrounding circumstances of the case. Suffice it to say that we agree with respect with Mr Zervos's submissions and, for the reasons adumbrated by him in his submissions, we would allow the application, set aside the sentences imposed in the Court below and substitute therefor the following sentences.

19. We adopt a starting point of one year for Count 1, a starting point of eight years for each of the robbery offences, taking account the fact that these were lift robberies and there was a multiplicity of offences. Taking the totality principle into consideration, we would order the sentences to run concurrently, thereby making it a total of eight years, but we would give a discount of two years for the Respondent's plea of guilty, and a discount of another year for his clear record, bringing the sentence down from one of eight years to one of five years. And this is the sentence we order.