R. v. YIP SIU CHUNG

IN THE COURT OF APPEAL

1996, No. 591
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court):

1. On 3 October 1996 this applicant pleaded guilty to an offence of robbery committed with another co-accused in front of Her Honour Judge Beeson in the District Court. The judge called for reports and on 17 October, he was sentenced to 3 years imprisonment. He now asks for leave to appeal against that sentence.

2. The offence was a serious one. The victim was 16 years of age. He went into an amusement games centre. As he was about to leave, the applicant's co-accused told him not to leave and pushed him into a store room. In the store room was the applicant and another. The co-accused kicked the victim and demanded his wallet. This applicant had a small knife. It has been described as a "nail clipper with an attachment". It had a blade of about 2" long rather like a pen knife. He produced this and pointed it at the victim. The victim's property was taken. It included a bank card and his PIN number was obtained from him. He was threatened with beating to death if he reported the matter to the police. This applicant told him to snatch a purse from a girl in the centre and hand it to him later. The victim was so afraid that he did so. However, in due course the matter was reported to the police. The applicant was arrested and the small knife was found.

3. At the hearing the judge considered a number of matters in relation to sentence. She considered the serious nature of the offence. She had the reports for both applicants. She said that the reports indicate in all too common patterns - inadequate schooling, incomplete schooling in respect of both defendants, mixing with unsuitable companions, neither set of parents appear to have been able to supervise the defendants adequately after a certain point although both sets of parents are supportive of their sons. She considered the applicant's record that showed that in 1994 - consistent with him being a drug addict at the time of this offence - an offence of possession of dangerous drugs. He had two offences of blackmail in September 1996 and an offence of common assault. Also, he had previously pleaded guilty to another assault and to being a member of a triad society.

4. It was against that background that the judge had to consider the reports. Although she apparently had not asked for a report for detention centre, she had asked for a report of suitability for a training centre. The Commissioner of Correctional Services did not consider him suitable for such an order because he was drug dependent, but he was suitable for detention in a drug addiction treatment centre. In fact, some few days before the judge came to sentence, he had already been sent to a treatment centre. The judge had a report from that centre which showed that his initial response was cooperative and he had indicated an incentive to eradicate his addiction problem.

5. Having considered all those matters, the judge said this:

"I do not consider, however, that a Drug Addiction Treatment Centre Order is adequate to deal with the criminality in respect of the 2nd defendant, and for that reason I propose to sentence him to prison."

She took a starting point of 5 years imprisonment. Having regard to his age, circumstances, and plea of guilty that was reduced to 3 years imprisonment.

6. Mr Percy who appears for the applicant submits that that sentence in all the circumstances was manifestly excessive or wrong in principle. He points in particular to the way in which the other defendant was dealt with. The other defendant had a similar record but was not dependent on drugs. He was also involved in the same offences of blackmail and assault. He, however, by the time of the hearing, had already been sentenced to a detention centre order by another court, and the judge having called for report about his progress, came to the conclusion that he ought to be left there because his progress was so good. She pointed out however that if on his release, he offended again, he has nothing to look forward to but a long period of life in prison.

7. There were, therefore, good reasons for the judge dealing with the other accused quite differently from this applicant. No doubt, he and his family feel that his sentence in time is much longer.

8. We have to consider whether in all the circumstances this sentence, heavy though it is, is wrong in principle or manifestly excessive. Mr Percy relies upon the applicant's age of 20 - he was 20 years and 4 months. The courts must always take into account the age of an accused person. But as for the age being a significant mitigating factor in robbery, this Court has said on many previous occasions that only when an accused person is of about the age of 15 would that be a significant mitigation. The unfortunate experience of the courts is that most of the robbery cases of this nature are committed by young people. In these circumstances it is impossible for this Court to say that the judge in passing this sentence was wrong in principle or that she passed the sentence which was manifestly excessive.

9. In those circumstances this application is refused.