THE QUEEN v. MOK KING WAN

IN THE COURT OF APPEAL

1987, No. 239
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. The Applicant, Mok King Wan, was convicted after trial of the offence of robbery. There had been originally charged with him, but this is not apparent from the Indictment, four other persons. Li Chi Ko, who was ordered to be detained in a Training Centre, he was approximately 18 years of age at the time of the offence; Lee Chi Yuen, his brother, who was ordered to be detained in a Detention Centre being aged 17½ approximately at the time of the offence; Lam Kam Yuen, who was ordered to be detained in a Training Centre and was aged 15 approximately at the time of the offence and, lastly, one Chung Sai Kwong who was ordered to be detained in a Detention Centre. Those four persons had pleaded guilty in the Magistrates Court at the time of the committal proceedings and were committed to the High Court for sentence. The Applicant pleaded not guilty and it was after trial that he was convicted.

2. The robbery took place in a premises in Silverstream Path, Silverstrand Bay at Sai Kung. The three inmates of the premises were tied up. One of them, a Filipino maid who was attempting to protect a baby who was in her charge, was assaulted and received slight when she attempted to attack one of the robbers.

3. The matter was well planned and, as the sentencing judge said, it was not clear who inflicted the injuries upon the Filipino maid. However he accepted that this Applicant and the others went along on an expedition to carry out the robbery in which knives were carried and the premises ransacked. He considered the matter to be a serious offence. He imposed a sentence of 9 years' imprisonment upon the Applicant.

4. Subsequent to that, in Application for Review No. 14 of 1987, the Attorney General applied to the Court to review the sentences passed on the other four co-participants. That review succeeded with the exception of the 15 years old Lam. The Court imposed on the two Lees sentences of 4 years’ imprisonment. Chung Sai Kwong was in a somewhat different position. Being horrified by the violence offered to the inmates of the premises he had attempted to restrain his co-participants in carrying out any further violence. He received a sentence of 3 years’ imprisonment.

5. Mr. Poll has drawn our attention to the personal circumstances of this Applicant. He is aged 29 and was, therefore, very much older than any other participants but he has a young baby who was born after the offence and prior to his arrest. He has, it was urged upon us, shown remorse, underlined by the withdrawal of his application for leave to appeal against conviction before this Court. It is suggested that the trial judge did not fairly apportion blame as between all of the participants and that this man was in no worse a position than any of the others upon whom he had to pass sentence and that, even in the light of the revised sentences upon the other four, there is a disparity arising from this lack of apportionment.

6. The trial judge could not, of course, have been aware of the views that would be taken by the Court of Appeal in considering the sentences he had passed upon the others. He was clearly influenced by their very young age.

7. On a plea of guilty and in view of those ages, the review court considered that 5 years' imprisonment generally would have been appropriate but granted the usual discount that is given when a review succeeds. We would prefer not to send prisoners back into society with any sense of grievance and take the view, partially as an act of mercy in this case, that the sentence of 9 years even compared to the new sentences imposed upon the others is one which is out of proportion.

8. In those circumstances, we would grant leave, treat the hearing as the hearing of the appeal, allow the appeal and substitute a sentence of 7 years for the sentence of 9 years which had been passed.