R. v. CHOI HOI HUNG

IN THE COURT OF APPEAL

1996, No.490
(Criminal)

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J U D G M E N T

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Saied, J. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his sentence of 21 months imprisonment imposed by a deputy judge of the District Court on 13th August 1996 following his plea of guilty to a single count of robbery.

2. The agreed facts were to the effect that on 21st January 1996 the applicant, who was D2, together with two friends went to an amusement games centre to play video games. They found the victim and another man already there playing the games. The applicant and his co-accused, LEUNG Ka-ming (hereinafter referred to as D1) asked them to leave and as they all walked to the entrance of the games centre the applicant accused the victim of stealing his friend's wallet the previous day. When the victim denied this accusation and said that he had not been to the games centre at the time alleged the applicant left the party saying that he would ask his friend to identify the victim as the thief. It was then that D1 scolded the victim with foul language and broke an empty bottle to threaten the victim with. The victim's companion persuaded D1 to put down the bottle and talk but D1 picked up another bottle, smashed it and cut his own arm and pointing it at the victim demanded money from him for medical fees. The victim injured one of his fingers trying to ward off the bottle. At this stage, D1 asked him to hand over all the money he had and the victim gave him $100 which D1 handed to the applicant. D1 told the victim that it was not enough and accompanied him to a bank electronic machine nearby but the victim discovered that there was no money in his account. D1 then asked the victim for his gold necklace which he refused to part with and D1 threatened to beat him up if he did not get more money. The victim suggested that he would see if his companion could give him some money. At this stage another friend of the victim came out of the amusement centre looking for his two friends and on seeing them being threatened with a broken bottle called the police. Two police officers arrived. The applicant tried to throw away the $100 which had earlier been obtained from the victim but was caught by one of the police officers who, after a report of the incident being made to them by the victim, arrested both the applicant and D1. Under caution the applicant admitted the offence of robbery and maintained that he was only helping D1 to rob the boys.

3. This offence took place on 21st January, 1996. Between that date and the 13th August 1996 when he pleaded guilty the applicant had been convicted on 6th March 1996 by a magistrate of various offences and committed to a training centre. Before sentencing the applicant in the present case, the deputy judge called for a progress report in which the judge found some "positive" comments about the applicant which he described as encouraging. We should add that the Training Centre suitability report sets out in detail the applicant's remorse, his conduct during his detention and the reporting officer concluded thus: "Taking into consideration his young age and having a supportive family in his future reformation, I am of the opinion that a period of disciplinary training reinforced by aftercare supervision will be deemed beneficial to him." The applicant's counsel invited the trial judge to allow the applicant to continue with the training centre programme but the judge, considering

that the applicant was no longer a teenager and had committed a series of other offences mostly theft and criminal intimidation after the instant robbery, declined the invitation and said, " Having considered all the circumstances, although I accept that the circumstances of the present offence were not of the very serious type, I found that it would not be appropriate to impose another order of training centre." Taking a starting point of 3 to 3½ years he reduced it to 21 months for his plea, his health condition, his role in the robbery, his age and his positive performance in the Training Centre.

4. It is now submitted on his behalf inter alia that the sentence is excessive in that the trial judge had failed sufficiently to take into account the applicant's role, the favourable remarks and comments in both reports which recommended also that he was suitable to continue his sentence in the Training Centre and that the judge had failed to take into account the effect of section 5A(1) of the Training Centre Ordinance Cap 280 which provides that where a person who is serving a sentence of detention in a Training Centre is sentenced to a term of imprisonment of 2 years or less, not being a suspended sentence, the sentence of detention shall be suspended until the expiration of the term of imprisonment.

5. Mr. Wong, for the applicant, cited some cases including R v Ma Kam-hon, Criminal Appeal No. 30 of 1988 but found the recent judgment inA.-G. v So Chi-shing, Application for Review 1995, No.13, more pertinent to his submissions. There it was held: "(1) the reports before the trial judge indicated that the respondent had positive family support from his mother; that he had made real progress by ridding himself of his drug addiction and that he had, by his attitude in the Centre and by his plea of guilty, shown a real degree of remorse and preparedness to face the consequences of his actions; (2) that the case had some unusual features. The three robbery offences which had resulted in the Training Centre Order were committed, but not dealt with, before the respondent was sent to the DATC for the two theft charges. He had clearly made considerable progress in the Centre. At the time of sentence there were positive indications not only of real remorse but also that he was well set up on the path of rehabilitation. This was not the situation in AG v Yau Wing-hong [1995] 3 HKC 95, where it was urged, on behalf of the respondent, in an application to review a Training Centre order that it should not be replaced by a prison sentence because rehabilitation had commenced after he had been sent to the Training Centre; (3) the circumstances in this case were exceptional and it was in the respondent's interest and in the interests of society at large that he be sent to a Training Centre." He submitted that as the applicant had spent some five months in the Training Centre he should be allowed to stay on there. Alternatively, he urged that the sentence of 21 months imprisonment be reduced.

6. Mr Saw, Senior Assistant Crown Prosecutor, submitted on the basis of MA Kam-hung(supra) that the trial judge had arrived at his conclusion regarding the appropriate sentence after performing what he termed as a balancing exercise in conformity with the provisions of Section 5A of Cap.280. He argued that a proper starting point in the circumstances of this case in accordance with the guideline case of MO Kwong-sang [1981] HKLR 610 would be 5 to 6 years imprisonment which, after the usual discount for a plea of guilty and other factors in mitigation, could be reduced to 3 1/2 to 4 years.

7. We are of the opinion that the case of SO Chi-shing (supra) is distinguishable from the instant case, the most significant factor being that there the respondent SO Chi-shing had already been discharged from the Drug Addiction Treatment Centre (DATC), whereas here the applicant had been in the Training Centre for about five months and still had some considerable time to serve out the remainder of the detention period. Accordingly a report based on a much longer period of observation would be more persuasive than one based on a much shorter period. Unlike that case where the trial judge had given no indication, other than her preference to after care, why she considered it proper to order that the respondent, who was aged 20 and had pleaded guilty to three robberies, should be sent to a training centre, here the sentencing judge had given his reasons why he found it would not be appropriate to make another training centre order notwithstanding his acceptance that the offence was "not of the very serious type", those being three-fold: (i) the applicant was no longer a teenager; (ii) he committed a series of other offences after the instant robbery for all of which he was committed to the Training Centre and (iii) he had been previously in May 1993 the subject of such a training centre detention order. So, in SO Chi-shing this Court had to the consider whether there was any "exceptional circumstance" which would warrant the making of that order.

8. We consider that where the sentencing judge has set out his reasons why he thought such an order was inappropriate in the circumstances of the case, he was in effect making a considered finding of the non-existence of any exceptional circumstance such as to remove the sentence from the guidelines set out in The Queen v MO Kwong-sang [1981] HKLR 610. We find no acceptable cause to interfere with that finding which was amply supported by the applicant's previous record.

9. In the circumstances we have to consider whether the sentence passed in this case was improper in any manner or excessive. The intention of the legislature in promulgating section 5A of the Training Centre Ordinance calls for no more elucidation than to repeat what was said in MA Kam-hon (supra) : "Clearly the legislature envisages that there are circumstances in which it is appropriate to adopt this method of dealing with an offender". In following that method the sentencing judge was not in our opinion in error.

10. This takes us to the sentence itself which is 21 months imprisonment. Appreciating that the operation of the training centre order will be suspended by any prison sentence of 2 years or less, the question that arises is whether it is such a sentence that will interrupt the training centre order for longer than is absolutely necessary. As Mr. Saw submitted, and we agree with his calculation, that following the guidelines a sentence of 5 to 6 years for this kind of robbery after trial would be proper and would properly be discounted to 3 to 3 1/2 years after a plea of guilty. Looking at the sentence of 21 months, we are satisfied that it reflects the balancing exercise to which Mr. Saw had referred and which in the circumstances of this case was entirely reasonable and fair. We see no reason to reduce that sentence any further. In our view, the sentence imposed by the judge is not wrong in principle nor is it by any means excessive. The application for leave to appeal is therefore refused.