THE QUEEN v. LEE MING YOUNG

IN THE COURT OF APPEAL

No. 377 of 1987
(Criminal)

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J U D G M E N T

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Kempster, J.A.

1. On the 13th of July this year in the District Court LEE Ming-young pleaded guilty to one charge of robbery and one charge of taking a conveyance without authority. Judge Roy sentenced him to 3½ years' imprisonment for the robbery and to 2 years’ imprisonment, to be served concurrently, for taking the conveyance. It was not suggested that he was unfit lo plead. Having regard to the nature of the charge there was no question of diminished responsibility. There was no plea that he was insane at the time when the offence was committed and there was no application for a Hospital order under the Mental Health Ordinance. Nonetheless, the applicant seeks to have the sentence of imprisonment reduced or some other sentence substituted on medical grounds.

2. The robbery and the taking Here different aspects of a single criminal enterprise in which the applicant became involved in Ventrix Road, Happy Valley. It was succinctly described by the judge:-

"The defendant suddenly appeared and held a double-edged knife to the throat of a man who was alighting from a Mercedes Benz motor-car around midnight on the 8th March 1987 and declared robbery. He relieved the man of his watch, seventy dollars and his wallet and the man's wife of fifty dollars. He then ordered the victims out of the car and boarded it himself and drove away."

3. After an attempt by the police to stop the car the applicant jumped out and sought to make good his escape. He was caught; the car having meanwhile crashed into a lamp-post.

4. The applicant was aged 26 years, single and of previous good character. He had been active in and a responsible officer of the Scout Movement. Somewhat incongruously the weapon used in the course of the robbery was a scout knife. Prior to the 28th of February he had been employed in a film laboratory but had left that position, it is suggested, because of incompatibility with his colleagues. He had, in the course of several years, attempted a number of jobs and, apparently, had not, found any really congenial. The trial judge was told that he had a lively expectation of alternative employment when he left the film laboratory but that his hopes were not realized. It was further suggested that on the evening in question a girl-friend whom he had arranged to meet had failed to show up. In summary, it was and is contended that the applicant was not merely in a foul frame of mind that night and depressed but was suffering from a depressive illness.

5. We have considered the medical evidence that was before the judge and have admitted a further medical report which, substantially, expressed the factors which gave rise to this young man's uncharacteristic behaviour in psychological terms.

6. While on bail awaiting trial the applicant obtained employment with a concern called Ernest Printers and they, like other employers, speak well of him. Ernest Printers said they are prepared to have him back.

7. All these considerations, in my view, were sympathetically considered by Judge Roy and despite the forceful submissions made by Mr. McKenzie Ross in what I at least regard as a difficult application I remain satisfied that the judge's approach to sentence cannot be faulted. I would dismiss the application.

Yang, V.-P.:

8. I too would dismiss the application for the reasons advanced by my Lord Kempster.

Barnes, J.:

9. It is with the greatest respect that I express dissent from the view held by two such distinguished members of our appellate court. In my view the medical reports reveal that the applicant at the time he committed the offences was "not himself"; a condition which the law recognises as a factor which decreases the degree of culpability for the commission of an offence. The condition is recognised when we sentence a man who has committed "murder" under provocation on the basis that the offence is only manslaughter. This man, on the medical reports, was not himself at the time that he committed the offences and his condition was not self-induced. I would therefore regard his condition as a significant mitigating factor such as would in my view call for a sentence much more lenient than the one that was imposed.