THE QUEEN v. TAM KWOK WAI

----------------------

-----------------

JUDGMENT

-----------------

Kempster, JA :

1. This is the judgment of the Court.

2. On 7th November 1990 in the District Court Tam Kwok-wai, then aged to years, was convicted of robbery on his own plea. On the 21st of that month, having sent for and considered reports, Deputy District Judge Sweeney sentenced him to 18 months imprisonment.Against that sentence Tam seeks leave to appeal.

3. The robbery took place later on the night of 21st July 1990 at the first floor podium of Choi Wan Commercial Complex, Kowloon. Two men, one holding a knife, approached the two female victims and took their money and valuables which included gold and silver rings and necklaces. Some five minutes later the applicant and another man came on the scene, both holding knives. The four robbers, clearly acting in concert throughout, then declared themselves dissatisfied with the existing proceeds of their crime and required the victims to hand over their bank cards and to furnish the related code numbers. One victim was taken to a cash dispensing machine where a thousand dollars was withdrawn from her account. Before making off, the robbers took the victims' addresses and phone numbers and warned them not to report what had happened. The implicit threat was obvious.

4. Section 109A of the Criminal Procedure Ordinance (Cap 221) does not apply even to a 16 year old when he has been convicted of robbery but, as the judge appreciated, these courts will not readily commit a person of that age to prison; perhaps with section 1(1) of the English Criminal Justice Act 1982, as amended, in mind.  That is why he called for reports before passing sentence.

5. At the time of his conviction the applicant, who had a troubled family background and a series of convictions for minor offences, was already detained pursuant to a Training Centre Order made on 28th September 1990 following his conviction for the much less serious offence of shoplifting committed on 17th July; four days before the robbery. That offence had also constituted a breach of a probation order made after the applicant's conviction for .. yet another offence of theft.

6. The Deputy Judge had the plea of "guilty" and the provisions of section 5A (1) of the Training Centres Ordinance (Cap 280) in mind. That section reads:

"If a person in respect of whom a sentence of detention in a training centre ... is in force is sentenced to imprisonment-

 

These provisions show that the legislature had the possibility of such successive sentences in contemplation. Further, as Mr Wong on the applicant's behalf has pointed out, the effect of the sentence of 18 months imprisonment will be to retain the provisions in the Training Centres Ordinance for supervision after ultimate release, to the applicant's advantage. As regards the length of the sentence of imprisonment for the robbery the judge referred to the guidance of this court given in Mo Kwong-sang v R [1981] HKLR 610. It commended a sentence of five years imprisonment after trial in such circumstances as have just been recited. The judge discounted that figure heavily on account of the applicant's youth and the period of detention to which he was currently subject.

7. As the applicant has undergone a period of some five months imprisonment since 21st November 1990 we do not think it would be appropriate now to interfere whatever course we might have taken had it fallen to us to sentence him. This implies no criticism of the sentence impugned. In the event the applicant is embarked upon periods of detention successively calculated to deter and to rehabilitate. We do not think, having regard to his antecedents, that any error of principle is thereby demonstrated.

8. This application is refused accordingly.