HKSAR v. WONG SAN

CACC 143/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 143 OF 2000

(ON APPEAL FROM HCCC 9 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 24th March 2000, the Applicant, aged 14, confirmed his guilty plea in the Court of First Instance before V. Bokhary J to a charge of robbery which he had first entered in the magistrate's court. Following an adjournment in order to obtain Training Centre and Detention Centre reports, the Applicant was sentenced on 7 April 2000 to four years' imprisonment. He now seeks leave to appeal against his sentence.

2. The charge faced by the Applicant was that on 3 October 1999, he and three others, two of whom were unknown, robbed the occupants of domestic premises of a quantity of cash and jewellery, three cameras, a mobile phone and various other items. The offence took place at 3.15 a.m. The victims woke up to find four armed men in their bedroom. The Applicant pointed a 20 cm long fruit knife at the neck of the female occupant (PW1). The other three men, who were holding two knives and a chopper between them, pointed these at the male victim (PW2). The intruders indicated they wanted money.

3. A guest (PW3) in the bedroom next to PW1 and PW2 was also robbed in due course. He noticed three men in his room when he woke up. He shouted out for help and kicked the intruders. At that point, the three males pointed their knives at PW3. As a result, PW3 sustained some cut wounds in the struggle which followed on his chest and his right knee. The three males also stepped on PW3's head. The three males then tore up the bed sheets and tied up PW3 with them. PW3's mouth was gagged. One of the three males signalled PW3 to surrender his money and PW3 handed HK$2,000 and RMB$800 to them. The three males also ransacked PW3's bedroom. The injuries which PW3 received were later treated. He had received bruises and swelling to his head and two superficial lacerations on his chest, each of those being 2 cm long, where the skin had been cut. There was a superficial laceration of skin over the right of the chest and a small abrasion over the right knee.

4. Fortunately, PW1 and PW2's daughter (PW4) heard the noise being created by these events and managed to get out of the premises. She raised the alarm at a neighbour's house. After that, she returned to her own house just in time to see the Applicant running away. Police were able to catch him. He still had a knife in his possession as well as some of the property stolen in the robbery. Questioned about his role, the Applicant remained silent.

5. On 12 November 1999, as becomes clear from his criminal record, the Applicant was ordered to go to a Boys' Home for the offence of remaining in Hong Kong without authority.

6. In passing sentence, the judge said:

".... this was an armed robbery. There were further aggravating circumstances in this case. Firstly, domestic premises were invaded. Secondly, this was during the night. Thirdly, there were a number of robbers acting together, you together with three others. Fourthly, the victims were ill-treated by being tied up and one of them gagged. You are now being detained in the boys' home for an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

So on the principle of totality, to ensure that you are not punished too severely, I will take that into account when selecting a starting point, and I will select a slightly lower starting point than I would otherwise do. In all the circumstances of this case, I shall take a starting point of 8 years' imprisonment. The two principal elements of mitigation for you are your guilty plea and your youth. As a result of your youth, I sent for reports on your suitability for detention in a detention centre or a training centre.

It has been reported that you are not suitable for detention in either of them. Nevertheless, your youth remains relevant to the length of the prison sentence which I feel I must impose. Having regard to all the circumstances including your guilty plea and your youth, I propose to discount the starting point by four years. In the result, I sentence you to 4 years' imprisonment which sentence is to run from today, but of course, you will be given credit for all the time you spent in custody prior to sentence."

7. It is apparent from what the judge said in those remarks that the only reason that the Applicant was dealt with as leniently as he was for a robbery as serious as this was his youth and his plea of guilty.

8. In his written grounds of appeal, the Applicant has once again emphasised his young age and suggests that the judge should have made the sentence shorter because he is eager to return to his family in the mainland. There is no doubt, in our judgment, that the sentence was the least sentence that a judge could possibly, in these circumstances, have imposed. The crime was very serious and there can be no question but that this application should be dismissed.