ATTORNEY GENERAL v. YAU WING HONG

IN THE COURT OF APPEAL

1995, No.2
Application for Review

HEADNOTE

Sentencing - Robbery - young person. Application to review Training Centre Order. Seventeen is not "extreme youth". Training Centre order was wrong. Guidelines in Mo Kwong Sang should have been followed.

IN THE COURT OF APPEAL

1995, No.2
Application for Review

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. We are here dealing with an application by the Attorney General for a review of sentence. The respondent Yau Wing-hong was sentenced by Deputy Judge Yeung sitting in the High Court after pleading guilty to six counts of robbery to be detained in a training centre pursuant to the provisions of the Training Centres Ordinance. The respondent was born on 17th October 1977. He is presently 17 years of age, was 17 when sentenced on 4th January this year and was 16½ when he committed the offences.

2. The respondent was a member of a gang of four including one female who, in different combinations from February through to June 1994, systematically robbed women working in boutiques. The robberies clearly required a degree of planning and must have been carried out after observation of the premises as in each case the victim was alone. On each occasion weapons were used to subdue and terrify the victim. One victim was tied up and gagged, one was told she would be stabbed to death, two were subjected to violence. Whatever appealed to the perpetrators as being of value was taken from the premises.

3. It was the Attorney General's contention that these were bad offences. He submits that vulnerable women were targeted, women who were working alone and who were defenceless in the face of the weapons and the numerical priority of the gang. The six offences to which this applicant pleaded guilty occurred in April, May and June. They were calculated offences extending over a period of three months.

4. When sentencing the respondent the trial judge said:

"Offences of this nature, of course, normally would call for very substantial terms of imprisonment. Your counsel urged this Court on 2 matters which I think are of some significance. Firstly, it was pointed out that at the time of the offences you were only 16 years of age. I accept that in the light of the age of the other accomplices you were probably under the influence of elder men. It is also pointed out to this Court that at the material time you were a drug addict and this aspect was, in fact, confirmed by your only previous conviction of possession of dangerous drug, for which offence you are, in fact, being detained in a training centre.

I must confess that to consider an appropriate sentence has given me some degree of difficulty and anxiety. As I said, offences of this nature are very serious, but, on the other hand, I adopt your counsel's submission that you were very young at the time of the offences and now you are only 17 years of age. I accept that, if possible, the Court should perhaps allow young offenders a chance to reform himself.

I note from the training centre progress report that you are doing well in that you've displayed a positive attitude to your training programme and, in fact, you are studying a standard equivalent to form 3.

Your background report also indicated that, to some extent, you still have a family which is supportive.

I am, on the evidence before me persuaded that perhaps you stand a good chance of reforming yourself and, therefore, persuaded to take this rather unusual step of continuing with the training centre programme that you are receiving."

The judge, as can be seen from the passage set out above, gave considerable weight to the fact that the respondent was "very young" and was progressing well in the training centre where he was already confined.

5. The Attorney General contends that the order that he continue to be detained in the training centre imposed an inadequate sentence which was wrong in principle. In particular he urges that the trial judge failed without good reason to follow the guidelines enunciated in The Queen v. Mo Kwong-sang [1981] HKLR at 610. It is also submitted that the judge ignored what was described as "settled law" by the Chief Justice, Sir Ti-liang Yang, in The Attorney General v. Li Chi-ko [1987] HKLR 1233 where he stated that in cases of serious robbery imprisonment should be imposed unless there are exceptional circumstances and that "youth of itself is not such an exceptional circumstances, although extreme youth may be". We think it useful to repeat what was said in Mo Kwong-sang by the then Chief Justice, Sir Denys Roberts:

"We think that it will be of assistance to District Judges if we indicate the level of sentence for armed robbery with which we would not interfere.

By the word 'armed' in this judgment, we are referring to knives and other dangerous weapons, but not to firearms for which severer sentences are normally imposed.

As this court has said on a number of other occasions, little account can be given to the previously clear record of anyone who takes part in an 'armed robbery'.

We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims, ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it."

We are mindful of the final paragraph which emphasizes that latitude is to be given to the sentencing judge. This court has repeatedly stated that sentencing guidelines are not straight jackets. They give guidance to the judges but a guidance which the judge can properly deviate from if there is an exceptional circumstance which indicates the propriety of a sentence other than that indicated by the guidelines.

6. The guidelines in Mo Kwong-sang were amplified in The Queen v. Chung Man-kit Criminal Appeal No. 354 of 1989 (unreported) where the court said:

"Where a serious robbery is concerned the youth of those who commit them is not a strong mitigating factor."

That consideration was again referred to in The Attorney General v. Li Chi-ko [1987] HKLR 1233 in which it was stated:

"It is settled law that, save in exceptional circumstances, a term of imprisonment ought to be imposed in a case of serious robbery as this one was, and youth of itself was not such an exceptional circumstance, although extreme youth might be."

"Extreme youth" in the case of Li Chi-ko, the defendant was just over 15, is an exceptional circumstance. We are satisfied that a person older than that cannot plead "extreme youth".

7. What we have to ask ourselves in the present case is whether, at the end of the day, any proper reason has been demonstrated for departing from the guidelines. Given that the applicant participated in six planned robberies in company using weapons over a period of three months his offences prima facie fell squarely within the guidelines. The trial judge regarded him as being "very young" and this was a substantial factor persuading him to act as he did. He was, we are satisfied, wrong so to have regarded him. His youth was not such as warranted weight as a mitigating factor. The trial judge was also impressed by the likelihood that he was influenced by older men, the other two male offenders being 19 and 20 and that he was a drug addict who was already being subjected to a disciplinary regime in the training centre. As to the suggestion that he was influenced by older men this was not established as a matter of fact. It was a suggestion which came from counsel and it, in our view, could not of itself be said to establish an exceptional circumstance.

8. Further the indication that he was a drug addict was not of itself sufficient to establish an exceptional circumstance. We refer in this regard to The Attorney General v. Poon Chi-tak [1987] HKLR 54.

9. We are left then with the submission which Mr. McLannachan, who appears for the applicant today and who appeared for him below, urged upon the trial judge that great weight should be placed upon the rehabilitation being effected in training centre. He submitted to us that the rehabilitation process was continuing successfully up to the present time. Can we properly regard this as an exceptional circumstance such as to remove the sentence from the guidelines. Given the multiplicity of the offences and the seriousness of those offences we are satisfied that it cannot properly be so regarded. The interest of the public which the guidelines were enunciated to protect calls for a custodial sentence in these circumstances. We are satisfied, given the aggravating factors, and we note that almost every aggravating factor mentioned in Mo Kwong-sang existed in the present case, that the appropriate sentence would have been one of eight years on each count. We are satisfied that, after plea, that sentence could be reduced to one of six years.

10. The application of the Attorney General succeeds. We quash the order of the judge and impose the sentences indicated.

11. In the circumstances we are satisfied that it is proper to order that the sentences be served concurrently. This must not be taken, we hasten to add, as an indication that concurrent sentences are always appropriate when sentencing for multiple robbery. This sentence is based upon the understanding that the custody since 22nd June 1994 will be taken into account in assessing the period of incarceration. We order, so that we not become functus offcio, that there shall be liberty to apply should it be necessary in that regard.

12. The sentence of 6 years' imprisonment be reduced, because of time served which will not be counted, to one of five years and four months.