HKSAR v. LAW KA KIT & OTHERS

CACC 97/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 97 OF 2001

(ON APPEAL FROM HCCC 245 & 259 of 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. The applicants appeared before Jackson J in March this year upon an indictment containing five counts. They were arraigned together with another defendant who was the first named defendant (D1) on the indictment but against whom only one of the five counts was levelled, and with whom we are not today concerned. It is convenient to refer to the applicants by their designations in the indictment, namely D2, D3 and D4.

2. This is an application by each applicant for leave to appeal against sentence. The offences for which they were sentenced covered a period of about two weeks in May 2000, during which they went on a robbery spree, in the course of which a real firearm was on each occasion brandished; during which shop employees were tied up; and during which the applicants used tape to cover the eyes or mouths of victims; and mobile telephones to the total value of about $164,000 were, in addition to other goods, stolen.

3. Counts 1, 2 and 4 charged robbery; Count 3 an attempted robbery; and Count 5, against D4 only, alleged possession of arms and ammunition without a licence.

4. D2 was aged 141/2 years at the time of the offences. He pleaded guilty to Counts 1, 2 and 4. He pleaded not guilty to Count 3 which was left on the file.

5. D3 who was aged 17 years, almost 18, at the time of the offences, pleaded guilty to Counts 1 to 4 inclusive.

6. D4 was aged 151/2 years at the time of the offences. He pleaded guilty to all five counts.

7. The facts can be summarised as follows:

Count 1

8. The first offence was committed on the afternoon of 4 May 2000 at a mobile 'phone shop in King's Road, North Point. D2, D3 and D4 suddenly entered the shop. D4 brandished a pistol and pointed it at the two sales people there, a man and a woman, and declared that this was a robbery. The sales people were taken to a storeroom where they were tied up, blindfolded, and their mouths covered with adhesive tape. The robbers then stole from the shop 15 mobile 'phones estimated at a value of HK$30,535, one mobile 'phone box, and two SIM cards.

Count 2

9. At about 10:30 a.m. on 8 May 2000, Ms Tsang, a sales lady of a mobile 'phone shop in Percival Street, arrived for work and, just as she pulled up the shutters of the shop to start her day's work, D2, D3 and D4 entered, and pulled the shutters down. Again, it was D4 who brandished a pistol and declared "robbery". D1 acted as a lookout. D2, the youngest of the group, tied Ms Tsang's hands and legs and covered her eyes with adhesive tape. 19 mobile 'phones (valued at $43,470) were stolen, as well as $500 cash, a diamond ring, a purse, and a mobile 'phone belonging to the lady victim.

10. The police arrived at the scene shortly after, and a fingerprint lifted from the door handle of the storeroom was later identified as that of D3.

Count 3

11. The business which was the subject of the next attack, on 16 May, was of a different kind: a foreign currency exchange shop in Causeway Bay. Yet again three young men, including D3 and D4, came in, one brandishing a pistol and declaring an intention to rob. The company director dodged into a small room next to the counter and switched on an alarm, whereupon the robbers fled before having a chance to steal. Hence the 3rd count, attempted robbery. D2 pleaded not guilty to this count, and the count as against him has been left on the file. So, for this offence, it fell for the judge to sentence only D3 and D4.

Count 4

12. Two days later, the applicants engaged in yet another armed robbery on a mobile 'phone shop, this time in Shau Kei Wan Road. The modus operandi was the same as before. D4 brandished a pistol at two sales employees and ordered them into the storeroom. D2 tied them up and covered their eyes with adhesive tape. The applicants then stole from the shop 26 mobile 'phones and 24 SIM cards valued at $89,960, as well as a handbag, a wallet, cash, a passbook, an identity card, keys, bank cards, boxes of cigarettes, and miscellaneous other items. This was Count 4.

13. There was evidence that in the course of the fortnight's escapade, D3 on one occasion and D4 on another, each sold a mobile 'phone to a telecommunications company.

Count 5

14. On 23 May 2000, the applicants were arrested in or near a hotel in Java Road which they had been occupying. That day, D4 led the police to a pipe duct room on the Hing Tung Estate, Shaukeiwan. Using a key seized from D4, the police gained entry, and in a bag in that room was found a pistol containing four rounds of ammunition, the pistol which had been used in the robberies.

15 The pistol was a home made revolver designed for discharging 0.22 calibre ammunition with a six round capacity in its cylinder. It was in working order. The four rounds of ammunition were 0.22 LR ammunition of Chinese commercial manufacture suitable for use with the pistol. These facts formed the subject of the 5th charge against D4 only, namely, possession of arms and ammunition without a licence.

The terms of imprisonment imposed

16. The judge sentenced the applicants as follows.

17. D2, the youth aged 141/2, was sentenced to a total of 10 years' imprisonment. He arrived at that total in this way. On each of the three counts to which this applicant pleaded guilty (Counts 1, 2 and 4) he took a starting point of 12 years' imprisonment and imposed a sentence of 8 years' imprisonment after plea. Addressing the question of totality, and the applicant's very young age, he ordered that two years of the term imposed on Count 2 be served consecutively to the sentence imposed on Count 1, the remainder to be served concurrently; and he ordered that in relation to Count 4, the term of 8 years there imposed was to run concurrently with the sentences on the other counts "for the reason", said the judge, "solely of his age at the time of these offences". In other words, but for his age, the judge is likely to have made an order of a partially consecutive sentence in relation to Count 4, resulting in an overall sentence of 12 years. In the event, however, the total in the case of D2 was 10 years' imprisonment. D2 had no previous convictions.

18. D3, the oldest of the group of three with whom we are concerned, was sentenced to a total of 12 years' imprisonment. In relation to Counts 1, 2 and 4, from a starting point of 12 years the judge imposed sentences on each count of eight years' imprisonment. Two years of that eight years imposed on Count 2 was ordered to run consecutively to the term imposed for Count 1, the remainder concurrently; and two years imposed in respect of Count 4 was ordered to run consecutively to the sentences imposed for Counts 1 and 2, the remainder to run concurrently; thus far, a total of 12 years. For Count 3, the attempted robbery, the judge imposed a sentence of six years' imprisonment, which he ordered to be served concurrently with the other sentences. So, we have a total in D3's case of 12 years' imprisonment. D3 was also a person of previous good character.

19. D4, the 151/2 year old at the date of the offences, also received a total of 12 years' imprisonment. In relation to Counts 1 to 4 inclusive the judge sentenced him in precisely the same manner as he had D3, a total for those four counts of 12 years. However, this applicant had pleaded guilty to a further count, namely, Count 5, possession of arms and ammunition. The judge took a starting point of 12 years for that offence and imposed a term, after plea, of eight years. He said that that term would run concurrently with the term imposed for the other offences, and he explained that this was because of the applicant's age, because he thought it the appropriate totality, and because he considered that the possession of the firearm was subsumed in the facts of the other offences. So the total for D4 was also 12 years. D4 did not have a clear record. In May 1999, he had appeared before a court in respect of assaults occasioning actual bodily harm, and in October 1999, he was convicted of assault with intent to rob.

The question of reports

20. Given the ages of D2 and D4 at the date of their offences and at sentence, we thought it appropriate to call for background reports. We notice that counsel had invited the sentencing judge to adjourn for reports but that the judge declined to do so, saying that by its judgment in Secretary for Justice v Li Man Biu CAAR 4 of 2000, the Court of Appeal had said that in a robbery case involving the use of a pistol and a beef knife, it "would normally be unusual to call for background reports in such a serious case."

21. The Court of Appeal was not there issuing some directive, nor suggesting that reports in serious cases were never appropriate. The court merely said what it meant, namely, that it would normally be unusual to call for reports in such a serious case. The court went on to explain why in Li Man Biu the judge had thought it right to call for reports, namely, that one of the applicants had been in Siu Lam and that two of the defendants were comparatively young. The court did not say that in those circumstances the judge had been wrong to call for reports, although in so far as training centre reports were called for in addition to background reports, in a case where the applicants were aged 17, it is indeed unusual to call for training centre reports, because that suggests that the judge was considering training centre orders where such an order, on the facts of that offence, would be most exceptional. However, sentencing is an art, not a mechanical exercise, and must be tailored to the case. In a case such as this, where one has the unusual circumstance of a very serious series of offences committed by youngsters aged 14 and 15, a sentencing judge is faced with a difficult task and, even though the gravity of the offences almost inevitably dictates a significant prison term, it may well be, nonetheless, that a court will wish to know more about each applicant before determining what that term should be. A report may reveal something special to an offender of such young age which might impact upon the term to be imposed. The judge in this case conducted a very comprehensive and careful sentencing exercise and was, it is apparent, rightly concerned about the tension between gravity of offence, and the youth of the offenders. In so far as he felt constrained by the comment in Li Man Biu to which we have referred, that is not a constraint that was intended by this court for a case such as the present. In the circumstances we decided to call for reports, although, as it happens, they reveal little that can assist these particular applicants.

The applicants' arguments

22. Mr Chan appeared on behalf of D2 and D4. D3 represents himself.

23. In relation to D2, Mr Chan pointed to his plea of guilty, his clear record, and in particular, as he does in the case of D4, to his age. His age, and that of D4, is suggested to be an exceptional circumstance which constitutes significant mitigation. In a realistic and helpful submission, Mr Chan asserted that exceptional youth may take a court along one of two paths: it may, in some cases, mean that an order other than imprisonment will, by reason of that factor, be imposed; in other cases that a lower term of imprisonment will be imposed. He accepted that in a case of the gravity of this case, he could not realistically suggest that a sentence other than imprisonment could properly be contemplated. He asked this court therefore to impose an overall term lower than that actually imposed in the case of his two clients. He also took us to a particular passage in the judge's comments when sentencing, in which the judge said:

"I am told and I must accept, albeit with more than a little reservation, that a youth or juvenile must be treated as an adult when it comes to sentence for offences such as these, unless he is of extreme youth, whatever that in reality may mean. Certainly it cannot be right, or so it seems to me, to arbitrarily adopt as it were a cut-off age of say 15, and to then say that anybody over that age is an adult for sentencing purposes whilst anybody below that age is of extreme youth. It seems to me, for what it is worth, that a youth is a youth whether he is 14, 15 or 16, and as such, prone to the foolishness which the lack of experience of life inevitably endows him.

This said, in the event and in the light of all of the circumstances of this present case, I am not prepared to say that any of these defendants are of extreme youth for sentencing purposes, and accordingly I proceed upon that footing, albeit that I am very conscious of their ages." (Tr. p. 18) (Emphasis added).

24 Mr Chan says that the judge erred when he failed to treat D2 and D4 as persons of extreme youth.

25 D3, in his submissions, told us of letters of support from friends. These are referred to in the report of the probation officer. The thrust of his submissions to the court was to emphasize that he had learnt a lesson, and that he regretted his commission of these crimes.

Extreme youth, and this case

26. D2 was aged 141/2 at the time of the offence, 15 at the date of sentence and, as he stood before us, he had recently turned 16. At the time of sentence, he was therefore a young person as that is defined in the Juvenile Offenders Ordinance, Cap. 226; and one starts from the proposition which section 11 of that Ordinance stipulates that: "No young person shall be sentenced to imprisonment if he can suitably be dealt with in any other way." There are cogent considerations which militate against sentencing persons of this age to prison. One is naturally cognisant of the immaturity of youth (though maturity will differ widely from offender to offender); the pressures and influences which can be brought to bear, especially when one notices a youth committing offences in the company or upon the direction of others who are older; and of the desirability of rehabilitating young offenders in settings more conducive to rehabilitation than may result from long term imprisonment.

27. Yet it has for long been recognised that "youth may pale into insignificance because of the magnitude or prevalence of the offence": see Re Applications for Review of Sentence [1972] HKLR 370, 417. Cases of serious robbery fall within the band of cases where youth is not a strong mitigating factor: see R v Chung Man Kit [1990] 1 HKC 87; and Secretary for Justice CAAR Application for Review 4 of 2000. That is because in such cases "the public interest must be served over and above the individual interests of the [accused] despite their youth": see R v Chan Chi Fai Cr App 59/83; and the commentary on offences by youth in Cross and Cheung 'Sentencing in Hong Kong', pp. 480 et seq. It is also well established that extreme youth may, though it does not necessarily, constitute strong mitigation. Where such strong mitigation may lead depends on the case and all the circumstances, including the circumstances of the individual offender. What is "extreme youth" is not a matter of exact mathematics, although someone under the age of 15, as was D2, falls within this category.

28. To state that these offences were very serious indeed is to state the obvious. In Li Man Biu, p. 9, the court said that:

"It is long been the policy of the courts to put offences of the kind where firearms, real or imitation, are used in the extremely grave category and to mark the gravity of those offences by deterrent sentences."

29. Difficult though it is to sentence youths of this age to prison and indeed to long terms of imprisonment, there are several considerations which dictate that in cases of such gravity, even in the case of those of the age of the younger offenders in this case, the courts must steel themselves, unless there are particularly powerful and peculiar contrary reasons attaching to the circumstances of the offender and his involvement in the offence, to the imposition of substantial prison terms. The public interest requires that an unequivocal message be delivered to youngsters, and to those who would engage them for the purpose of crime, that they must expect little quarter from the courts when it comes to the commission of such serious offences, especially when guns are carried and used in the commission of crime.

30. We are, in this case, talking of a group of youngsters who planned a series of robberies. This was not a case of a single robbery suddenly conceived and executed without a firearm. The robberies were carried out by gangs, itself an aggravating feature. On each occasion the applicants used a firearm, not imitation but real, to effect their crime. This is of course the most serious aggravating feature of all in this case. We do not know whether at the time of the robberies the firearm was loaded, as it was when it was discovered after the arrest of the applicants. There was a course of conduct showing that it was planned to rob shops selling mobile 'phones, and substantial quantities of goods were stolen. On each occasion, the shop assistants were tied up and blindfolded, save in the case of Count 3 with which the applicant D2 is in any event not concerned. We note also that it was that applicant who did the tying up. It was he who tied the victims up and placed tape over their mouths or eyes or both. Whilst we can accept that someone of his age may well have been under the influence of older boys, and that there was an older boy present, that is, D3, who was aged 17, almost 18, nonetheless there appears by this applicant's conduct an apparent willingness to engage full throttle, as it were, in the offences. The starting points taken by the judge were not too high.

31. We are of the view that when the judge said that in the light of the circumstances of the case none of the defendants was of extreme youth, he did err, if what he said is to be read literally. It cannot be gainsaid, in our opinion, that a person of 14 years is a person of extreme youth for present purposes. However, the degree to which that impacts upon sentence, if at all, must depend upon the case and on the offender. One offender aged 14 may be considerably more mature and hardened than the next of the same age. An offender aged 14 may in some cases be more of a leader and more cunning and street wise than an accomplice aged, say, 17 years; and, indeed, in this case, the information which we have strongly suggests that D4 was no less mature than D3.

32. We think therefore that in this case the question of extreme youth which applied in any event, in our judgment, only to D2, was a matter to be given some, but not much, weight. That in fact is what the judge did, for he so arranged the sentences on the different counts as to reduce the totality which otherwise would have been appropriate to one of 10 years, instead of 12 years' imprisonment. He said in terms that he was doing so because of D2's age. For the reasons which we have provided, we do not think that a further reduction is warranted. The report in the case of D2 reveals circumstances which are not extraordinary and provide very little in the way of mitigation. The picture painted is of a youngster whose behaviour at school was aggressive and uncooperative and impolite, a youngster who has fallen under the influence of triads. In the circumstances we have described, and for the reasons we have provided, the application in the case of D2 is dismissed.

D3

33. D3 was almost 18 years at the date of the offence, and the oldest, and whilst we note that he did not carry the gun nor engage in tying anybody up, he was nonetheless a full participant. D1 who featured only in Count 2 was, we are told, aged 21 years. It might well be said that because of D3's age he must have been in a position of influence over the other two, but, since we recognise that calendar age is not always conclusive of true influence, we do not think in this case that he should be treated as a leader. His report discloses a youngster who is described as a simple-minded person. There is, apart from his plea and previous good character, no real mitigation and the sentence imposed upon him is unobjectionable. His application is also dismissed.

D4

34. D4 pleaded guilty to more charges than did the others. He is the one who had possession of the gun. He is the one who carried it and who wielded it in threats against the shop assistants. He is the one who ordered victims to go into storerooms where they were then tied up. The only reason that he has not received a totality greater than that of D3 is, again, because of his age. The report in relation to D4 makes depressing reading. He too appears to have fallen under the influence of triads. It is revealed in the report that this applicant said that about $200,000 was obtained by sale of the stolen mobile 'phones and that the proceeds all went to D1. We cannot determine whether or not that is true. We also have in his case the benefit of a report or testimonial from Mr Chiu Ka Cheung of the Eastern District Outreaching Social Work Team. Mr Chiu is a social worker. His report is dated 1 March 2001. He emphasizes the likelihood of influence on this applicant by triad elements and says that the applicant is not as antisocial a personality as these crimes suggest. We take this report into account, although we note that there is no reference in it to the previous offences which had been committed by this applicant. Unlike the other two applicants, D4 cannot pray in aid a previous good character. In June 1999 he was placed under a care and protection order in respect of four offences of assault occasioning actual bodily harm. He was then dealt with under section 15(1)(a) of the Juvenile Offenders Ordinance, a section which permits a court to make a care and protection order whilst dismissing the charges where, however, the court is satisfied of guilt. In October 1999, D4 was sentenced to a detention centre for assault with intent to rob. In these circumstances, we hardly think that this applicant, despite his youth, has any room for valid complaint. The sentences imposed upon him were neither manifestly excessive nor wrong in principle and, accordingly, his application for leave to appeal against sentence is also dismissed.