HKSAR v. CHONG WAI CHUN AND ANOTHER

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JUDGMENT

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Nazareth V-P (giving the judgment of the Court):

1. Chong Wai Shum ("D3") and Pack Wing Shing ("D4") along with two others were on 9 February 1999 charged with robbery, contrary to s.10(1) and (2) of the Theft Ordinance (Cap. 210) before Her Honour Judge Poon in the District Court. All four denied the charge and all four were convicted after trial. The charge of robbery was that the four, Lam Chun Kit ("D1"), Mak Wing Ming ("D2"), D3 and D4, on or about 28 October 1998, at the bus-stop outside Lung Cheung Government Secondary Technical School, Lung Cheung Road, Tsz Wan Shan, Kowloon, in Hong Kong, robbed Cheung Nga Sze of one mobile phone, one handbag, one Hong Kong Bank savings account passbook, one Hong Kong Bank foreign account passbook, one National Commercial Bank account passbook, one wallet, one Hong Kong identity card, one Hong Kong Bank ETC card, one Standard Chartered Bank visa card, one Overseas Trust Bank visa card, one Citibank visa card one National Commercial Bank visa card, one MTR staff card, $580 in cash and one bundle of keys. We should mention that the ages of the four were D1 about 15 years, D2 14 years, D3 18 years and D4 20 years. Each of them was convicted and at a later date sentenced to a period of detention in a training centre. D3 has abandoned his application for leave to appeal against his conviction. His application is accordingly dismissed. He now applies for leave to appeal against sentence.

2. D4 applies for leave to appeal only against conviction.

3. The facts are simple. On the night of 28 October 1998 the victim, who subsequently gave evidence as PW1, was walking along Lung Cheung Road when she saw the four defendants near a bus-stop. D3 asked her if he might use her mobile phone. She gave it to him. He talked over it and gave it to two of the other defendants who also used it altogether for 10 to 15 minutes.

4. Suddenly, PW1 felt her neck being grabbed from behind and the handbag which she was carrying over her right shoulder and which contained the items listed in the charge, was snatched off her. The four males then fled. She commendably gave chase. D2 turned around and punched her on the right corner of her mouth. She fell down but managed to get up and continued to give chase.

5. She gave evidence that she saw D3 crossing over Lung Cheung Road and going in the direction of Lower Wong Tai Sin Estate. D1 and D2, she said, got on a bus.

6. The bus-driver gave evidence as PW3. He said he saw three males board the bus. It became clear later that the third person was D3. The driver went up to the top deck and told the three males that they would have to pay. One of them said they would get off. When the driver went back downstairs he saw PW1, the victim, who told him she had been robbed. At that point, an off-duty police officer arrived to give assistance. Another police officer arrived a little later. D3 managed to leave the bus by a window and escape. D1 and D2 were arrested by the second police officer, PW2. D3 and D4 were arrested the next day.

7. At an identification parade on 31 October 1998 PW1 positively identified D3 as one of the robbers.

8. All four of the defendants made admissions and statements, both oral and written. They were all represented at the trial. D1 and D2 by one counsel, and D3 and D4 each by their own counsel. They alleged violence and threats in challenging their statements.

9. At this point we turn to D4's application for leave to appeal against conviction. All he said in it was that he wished to appeal against conviction and wanted legal aid. He added that his grounds were that he did not do it and the judge did not believe him. That was all.

10. Before us today, he has added two matters. First, that what he said in his statement was not the same as what the witnesses said, but that the judge accepted both. Second, when arrested, he was taken to the police station but his statement was not taken for him for about two hours. However, the witnesses did not explain what they did in the two hours.

11. The second ground appears to be related to the challenge to his statement which, as I say, was made with the assistance of counsel below. It seems to be concerned with the police officers who took his statement, having used violence and threats against him in obtaining his statement. They, of course, denied that. The judge was fully aware of the complaints. She went into them and she ruled the statement admissible. She had D4's statement before her. The fact of it was that when it was pointed out to him that he had said he was present in his statement, he said that it was only because the police had arrested him at his home and in the presence of his mother that he had not then made his admission. He did not want to admit it before his mother so he admitted it later. If read carefully, it can be seen that it is a fairly detailed admission of the offence. He said he grasped the victim's neck and bent it backwards. Then D3 took the victim's handbag off. He released the victim and they ran off.

12. There is plainly nothing in his complaints. The judge was entitled to admit and accept the statement. She did so and nothing the applicant says is reason to fault her conclusion in relying upon the statement and indeed the other evidence in convicting D4. We dismiss the application for leave.

13. Turning then to D3's application for leave to appeal against sentence, what he said in his notice of application was this:

"I was sentenced to Lai King Training Centre for robbery. I feel the sentence of sending me to training centre is too heavy. I now request an appeal. Appeal against sentence and reduction of sentence. Now request for Legal Aid."

14. Before us today, he accepts that if someone has done wrong, he should be punished but he says the punishment he has received is too long. He says he has served four months in a training centre and he is really remorseful. He would like to be released to help his family, particularly as his father suffers from diabetes. He would like to lessen the burden on his family. He really realises that he has done wrong. He asks for a chance to be allowed into the open community.

15. He also presented us with a number of written sheets in which he had repeated the themes mentioned, in both Chinese and English. We have looked at these. Among them was also a letter from his father. Copies of the latter were received by us some days ago with English translations. Again, his father makes the same points. He says his son has been in the training centre for four months. By sending him to the training centre instead of prison, he can see that the judge obviously wanted him to mend his ways. He deeply believes that his son understands his fault and is determined to turn over a new leaf. He hopes we will give him a chance and let him work outside while at the same time receiving the probation officer's supervision. He does not want his son to be detached from society for too long, causing him to be depressed and feel pessimistic. He says he himself is suffering from diabetes and hypertension. The family wants the applicant to go out to work to share the family's responsibility. Finally, he mentions a special merit of his son, i.e. that he shows particular sympathy to the disabled. He says every time D3 meets the disabled who need help, he helps them, for instance to cross roads or stop vehicles.

16. The judge rightly pointed out that this was a serious offence. Had the defendant's been adults, as indeed these two are, sentences of 3 years could have been imposed. We have been carefully through the judge's reasons and through the probation officer's report and the Young Offenders Assessment Panel's report and recommendation. The judge plainly accepted the latter report and recommendation. She did not mention the probation report. However, we do not think she overlooked it. She was not required to mention it. As we say we have carefully gone through it and regrettably have to add the following. The judge would and must certainly have discounted it for it takes a somewhat unrealistically benign view of D3's behaviour not only as a matter of perception but also in its conclusions. It speaks of the following: "a playful adult with immature character", "excessive fun seeking", "playfulness", and "indiscrimination in making friends". It then refers to D3's expressed verbal remorse. But it overlooks his attempts to shift responsibility to D4, his evasiveness about triad affiliations and activities, his going back on his original admissions when giving evidence, his failure to respond on the occasion of his 1997 misbehaviour which led to him being bound over in a sum of $200 for two months for an admitted offence of attempted robbery, and his continued undisciplined way of living. Also overlooked or unappreciated was the fact of the parent's failure to provide suitable discipline. That was the fact, even if the pressures of life meant that they both had to be busy in attending to their jobs and earning the family livelihood and notwithstanding that both really do care about him. In that respect, this particular report appears to be somewhat uncharacteristic of the reports received from the Probation Services.

17. The report from the Young Offender Assessment Panel is much more realistic and clearly to be preferred as no doubt the judge preferred it. We would refer only to paragraphs 5 and 6 which are in the following terms:

Had the judge overlooked the probation officer's report, which we do not think she did, this Court would have had to reconsider the matter. We certainly would have come to the same conclusion that the judge did. There is no good reason for disturbing the order made committing D3 to a detention centre. Clearly he needs to be reformed. The training centre order, we think, is far more likely to achieve this than a community sentce order. It is by no means clear to us what rehabilitative effect a community service order would have in his circumstances. Also, it is far from clear that the latter would provide him with the necessary discipline and supervision that he plainly requires.

18. We dismiss his application for leave to appeal against sentence.