THE QUEEN v. MAK CHI TAK AND OTHERS

IN THE COURT OF APPEAL

1987, No. 341
(Criminal)

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JUDGMENT

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Power, J.A. :

1. All four applicants were charged that, together with other persons unknown, they, on 8th December 1986 at Kam Kee Watch Company, ground floor, 218 Ma Tau Wai Road Hong Kong, robbed NGAN Chi-yin of $l,500.00 Hong Kong currency and 97 wrist watches valued at $225,499.20. The 1st and the 4^th applicants pleaded guilty to that charge, the 2nd and the 3rd applicants pleaded not guilty but were found guilty by jury after trial. The 1st applicant was sentenced to b years, the 2nd to 7 years, the 3rd to 7 years and the 4th to 6 years. As the matter stands at this moment all are appealing against sentence.

2. During the course of the offence four men burst into the Kam Kee Watch Company, two of these were armed with beef knives and they then proceeded to rob the company and the individuals who were in the shop of the amounts of money and watches specified in the charge. It was a planned robbery perpetrated on business premises by a gang armed with knives.

3. The 1st applicant who was sentenced to 8 years complains that this is too long a period and says that he intends to turn over a new leaf. He says in mitigation that he was frightened and made use of by loan sharks. He was 17 years of age at the time of the offence, however, he already had two previous convictions one of them was for membership of triad society and the other for wounding.

4. The trial judge in the case of each of the applicants called for Detention, Training Centre Reports and Probation Reports.

5. The 1st applicant, who was 18 at the time of the offence, was found not eligible for Detention and Training centre and not suitable for probation. Mr. Allan who appeared for the applicant stressed that he had pleaded guilty and had admitted the offence upon arrest. He also urged the court to take into account that 83 of the 97 watches had been recovered. It appears not to have been id dispute at the trial that this applicant was the mastermind.

6. Given the previous record of the applicant and the part he played in the offence and, of course, bearing in mind his plea of guilty we must ask ourselves whether 8 years was too long a sentence to impose. The real mitigating factors are his plea of guilty and his age.

7. The 2nd applicant was sentenced to 7 years after being found guilty. He was 16 at the time of the offence. He appeals on the ground that the sentence is too long and that he intends to turn over a new leaf. He has no previous convictions. However, as was indicated in MO Kwong-sang[1], the fact of a clear record can be given little weight when assessing sentence in offences of this kind. The applicant was not recommended for probation but he was considered suitable for Training Centre. The trial judge was, understandably, given the seriousness of the offence, not prepared to act upon that recommendation. We must in the case of this applicant ask ourselves if the trial judge was right to impose such a substantial sentence given the age of the accused.

8. The 3rd applicant was sentenced to 7 years imprisonment after having been found guilty by the jury. He was 18 at the time of sentence, 17 at the time of the commission of the offence and he also had no previous convictions. He was said to be not suitable for probation but was recommended as suitable for either Detention or Training Centre. Again the trial judge was not prepared to act upon those recommendations. Similar considerations apply to the 3rd applicant as to the 2nd.

9. The 4th applicant pleaded guilty and was sentenced to imprisonment for 6 years. He was 17 at the time of the offence. He also had a clear record. He was recommended as suitable for Training Centre but again the tria1 judge did not act upon that recommendation. The trial judge when sentencing him clearly took into account his plea of guilty and also stated that he accepted that he was not the ringleader. Again in his case what this court must ask itself is whether or not sufficient weight was given to the youth of the applicant.

10. Given the guidelines in MO Kwong-sang¹ for an offence of this nature it was our considered view that the proper sentence to be passed upon a person after trial would be not less than 8 years. Allowance would have to be made, of course, for plea of guilty and for any other factors such as youth. As I have already indicated we accept that a clear record can be given little weight when assessing sentence in relation to an offence of this nature. It is unfortunate that the trial judge in this case did not give an indication of the length of sentence which would have been appropriate had there been nothing which called for a discount, i.e. the sentence appropriate upon a finding of guilty after trial. This court is greatly assisted when such an indication is given.

11. It appears to have been accepted at the trial that the 1st applicant was the mastermind. We consider that the starting point in his case should be 9 years. Bearing in mind his plea of guilty and his age we are satisfied that this figure should have been discounted to 6 years.

12. The 2nd applicant can; of course; be given no discount with regard to plea as he was only found guilty after trial. However, given his age and taking the starting point at 8 years we consider that a proper sentence would have been 6 years. We are satisfied that the same consideration apply in the case of the 3rd applicant and that his sentence should have been 6 years.

13. When dealing with the 4th applicant we take into account the same matters as were given weight by the trial Judge but consider that insufficient weight was given to his age and are satisfied that the sentence should have been one of 5 years.

14. The applications for leave to appeal against sentence are allowed. The hearing of the application is treated as the hearing of the appeal and the sentences are varied in accordance what I have just said.