HKSAR v. YIU SUI SUM

CACC 340/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 340 OF 2000

(ON APPEAL FROM DCCC NO. 696 OF 2000)

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J U D G M E N T

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Hon Rogers VP (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence.

2. On 1 June 2000 the applicant, who was 16, committed a robbery in an elevator. He threatened a lady with a knife and he extracted from her a mobile telephone and the sum of HK$300. He gave back the SIM card as the victim requested and then fled. Because he was still in the vicinity of the building about half an hour later he was arrested.

3. The applicant pleaded guilty before H.H. Judge Fung. A Training Centre Suitability Report had been made in respect of the applicant. That reveals that the applicant has had a difficult life. His mother died when he was very young. It appears that he has fallen into bad company. He has been difficult, to say the least, with his paternal grandmother with whom he lived and his relationship with his father has not been what it might have been. The conclusion at the end of the Training Centre Suitability Report was that the applicant was suitable for Training Centre.

4. When sentencing the applicant the Judge gave consideration to whether he should make a Training Centre Order. He came to the conclusion, as he said in his judgment, that based on the assessment of the applicant's background and character, he was not persuaded that he should depart from the usual guideline sentence for offences of this sort. He sentenced the applicant to 30 months imprisonment. That was calculated by taking a starting point of 5 years reducing it by a third in respect of the plea of guilty and by a further 10 months in respect of the applicant's age. It might be said that this sentence was by no means harsh or excessive.

5. Before this court the applicant has asked this court to give him a further chance. He has reminded this court of his age. He has reminded this court that persons of his age do things which are stupid and which they regret later. However, the indication from the applicant was that he expected some order which would entail his immediate release. That does not seem possible in this case. However, we have given very serious consideration as to whether a Training Centre Order should be made. We have had submissions from Mr Blanchflower on the subject and he has indicated that such an Order would by no means be inappropriate in this case. The applicant, however, has asked us not to make a Training Centre Suitability Report, largely based on the fact that he considers the 2 months which he has now spent in custody would not be taken into consideration when it came to determining the length of his stay at the Training Centre.

6. Having considered this matter carefully and considered the options we have come to the conclusion that we would not depart from the sentence which the court below has imposed. We consider this case very much a borderline case, but, given the background of the applicant and his past attitude, particularly to his paternal grandmother and his father, we are not persuaded that the applicant would necessarily benefit from a Training Centre. In view of the fact that the sentence which the applicant has received was in our view on the low side of that which could have been ordered, we have come to the conclusion that this application must be dismissed.