THE QUEEN v. CHOONG ENG YEE

IN THE COURT OF APPEAL

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JUDGMENT

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Silke, J.A. :

1. CHOONG Eng-yee was convicted on his own plea of the offence of robbery and was sentenced to 2 years' imprisonment. He seeks leave to appeal against that sentence.

2. On the 6th of February 1985, he had gone to a shop in Taipo and asked to see Dupont cigarette lighters. Later that same day, he returned to that shop threw a stinging substance in the eyes of the shopkeeper, he had had this substance concealed in a cigarette packet, seized two Dupont lighters and ran off. He was caught almost immediately with the lighters still upon him.

3. He immediately admitted the offence. He had a record of four larceny convictions in 1965; a false pretence and an unlawful pawning conviction and a further larceny in 1967 no further offences of dishonesty but with one conviction in relation to a false passport in 1978.

4. He has a cancerous tumour - nasal pharyngeal carcinoma - and did have it at the time of the commission of this offence and it is to this aspect of his personal circumstances to which Mr. Macrae, who appears for him in this Court, had directed our attention. We have adjourned this matter on a number of occasions. First for further medical reports which we receive and then for a background social welfare report. We have received one from a Probation Officer, Mrs. Tsui, which is exemplary in its detail its length and its helpfulness.

5. The cancerous tumour is now in regression. He has received a radical course of radiotherapy and the prognosis is "fairly satisfactory", though we do note that the survival rate in this form of cancer is low. It is clear, having considered the contents of the social welfare report, that at the time that the Applicant committed this offence he was seriously affected by his medical condition. In this sense, that he had had this course of radiotherapy. It had caused him physical changes. He had been receiving welfare assistance for his wife and his family. He had in fact been ill since 1982 first with gall-stone trouble and then with the tumour. As the tumour was in regression he was declared fit for work and the social welfare assistance to his family was cut from $1,700 per month to $1,400 per month.

6. The Applicant himself was born in Malaysia and has married a Malaysian lady but they have lived in Hong Kong for some considerable time. He has a strong family background in Singapore where in fact two of his children are now being educated under the supervision of a grandfather. There are two children in Hong Kong aged 10 and 12. But the wife, who has not had very substantial education, does not speak Cantonese with any fluency and is in some personal difficulty on her own in Hong Kong.

7. Mr. Macrae suggests to us that we alter this form of sentence completely by the imposition of a probation order. He has urged this course for two reasons: one, this particular offender would be peculiarly receptive to the benefits of a probation order, given his personal circumstances, and second: allowing for the assistance the probation service would give the public would be protected from his further depredations.

8. The treatment of this case by this Court will be on an ad misericordiam basis, while in no way suggesting that the sentence imposed here was, for an offence of this kind, anything but lenient. The personal circumstances of the prisoner are more clearly before us than they were before the trial Judge, and this is in no way a reflection on him. In particular the very helpful social welfare report is of considerable assistance. We do not think however that probation in the circumstances of this offence would be the proper order.

9. Bearing in mind all that which we now know of the personal circumstances of the offender the appropriate sentence would be a sentence which would effect his immediate release. The attention of the Discharged Prisoners Aid Societies is directed to the Appellant's circumstances and with particular reference to his need and desire for work, the necessity of seeing that he is medically checked and the assistance that can be rendered to his family.

10. Therefore we would grant leave to appeal, treat hearing as the hearing of appeal and allow the appeal to the extent that we quash the sentence of two years' imprisonment and substitute such sentence of imprisonment as would effect his immediate release. With the rider that the matter be referred to the Discharged Prisoners Aid Society as indicated.