R. v. LEE KONG and Another

IN THE COURT OF APPEAL

1994, No. 556
(Criminal)

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J U D G M E N T

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

1. There are application for leave to appeal against sentence.

2. Within hours of their arriving in Hong Kong as unauthorized entrants, these two applicants burgled a wooden hut in Sheung Shui. They got away with $800 in cash, a jade finger-ring, a gold plate, three watches, a quantity of clothing and a few coins of no great value.

3. A few hours later, also at Sheung Shui, they robbed a man at knife-point of $1,430 in cash. The judge accepted that the money was for the purpose of buying food.

4. On October 26 last year, the two applicants, appearing before H.H. Judge Longley in the District Court, pleaded guilty to robbery and burglary, and were each sentenced to a total of four years and 10 months' imprisonment. The judge imposed consecutive sentences but he applied the totality principle. For each applicant, the robbery sentence was four years and four months while the burglary sentence was six months.

5. Going by the charge sheet and also the notices of application for leave to appeal, the 1st applicant was aged 17 at the time of the convictions while the 2nd applicant was aged 19.

6. The judge thought that the 1st applicant was aged 23 while the 2nd applicant was aged 20. That was because, as they admitted before us, they had over-stated their ages to him believing that they would be better off in what they called "adult prison".

7. Before us, the two applicants say that they are even younger than appears in the charge sheet and their own notices of application for leave to appeal. One of them claims that he was as young as 16 at the time of his conviction.

8. The precise age of an offender is not always material. Overall, we are inclined to think that people in their late teens (say 16 to 19) should be dealt with differently, in circumstances such as these, from people in their early 20s and beyond. Within the younger of the two age brackets which we have mentioned, we think that four years for the robbery and three months consecutive for the burglary, giving a total of four years and three months, would have been appropriate. The Crown concedes - rightly we think - that we should proceed on the basis that these applicants fall within that younger bracket.

9. What we propose to do is to treat the hearing of these applications as the hearing of the appeals themselves and to allow the appeals so that each applicant receives a reduction of seven months, bringing the total down from four years and 10 months to four years and three months: that lesser total to be arrived at by way of terms of four years for the robbery and three months consecutive for the burglary. The appeals are allowed to that extent accordingly.