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IN THE COURT OF APPEAL
1987, No. 107
(Criminal)
BEI'WEEN
THE QUEEN
and
LUANG PO CHUEN
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Coram: Hon. Cons, V.-P., Yang, V.-P. & Power, J.A.
Date of Hearing : 14th July 1987
Date of Judgment: 14th July 1987
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JUDGMENT
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Power, J.A:
1. In this matter the applicant, who is 20 years of age, was, after trial, convicted of attempted robbery and sentenced to imprisonment for 4½ years. He now appeals against that conviction.
2. He was charged that he did on 16th November 1986 at the staircase between the 2nd and 3rd floor of Block H of the Fire Services Married Quarters in Kowloon attempt to rob CHAU Siu-ling. The grounds of appeal against conviction, which he drafted himself and now argues in person, are first that there was no motive shown as to why he should have committed this offence, second, that the victim did not identify him and, third, that he was convicted upon the basis of his statement only.
3. It is clear whoever was committing the offence was committing it in order to obtain money. It was quite plainly a robbery to obtain money. The applicant's suggestion in this regard seems to have been that he would not have had such a motive as he had a job and a' steady girl friend.
4. It is not quite correct to say, as he did in his Grounds of Appeal, that the witness did not identify him. What happened was that the witness did identify him but the trial judge, very fairly, refused to act upon her evidence considering that it would be unsafe to do so.
5. He finally complains that he was convicted upon the basis of his statement saying that it was not made by him freely and voluntarily and that it was not true.
6. The trial judge determined after hearing evidence that the statement was free and voluntary and nothing has been raised before this court which would suggest that he was in any way wrong in so doing. The statement is in the most damaging possible terms. In it he said:
"On that day for the sake of fun, when I walked past the Fire Services Quarters I saw a woman. I wanted to ask the woman for some money to spend. I had not beaten her. Fearing that the woman would shout out I pushed her onto the ground and hit her on the head lightly asking her to take out her money. However after wards I did not take her money. I hope you would let me go and not charge me because I did not take her money.”
There is no doubt that that statement is an admission by him of the offence charge. Such an admission coming out from the mouth of an accused is the best possible evidence, as long as it was voluntary and truthful, that he committed the offence. Nothing has been urged before this court which would impel us to interfere with the conviction and the application for leave to appeal against conviction is refused.
7. The applicant, who is represented in his appeal against sentence by Miss Toh, suggests that the sentence of 4½ years imposed upon him was wrong and that the appropriate order would have been that he be sent to a training centre.
8. The trial judge set out the facts succinctly in his Reasons for Sentence saying that the offence occurred at 11.45 p.m. on 16th November 1986 when the applicant attacked a woman whilst she was proceeding up a staircase in a building where she lived; that he pushed her to the ground, struck her on the head and demanded money from her; that the victim put up a struggle at first but then decided that discretion was the better part of valour; that she was about to offer whatever money she had on her to the defendant when he heard the sound of a door opening and fled; that some days later the police acting on information arrested him.
9. The trial judge went on to point out that he was then 20 years of age and, significantly that he had 3 previous convictions. One was for theft in 1982, when he was bound over for 12 months, one for theft in August 1983, when he was ordered to be detained in a detention centre, and, finally, one for assault with intent to rob on 5th September 1984, when he was ordered to be detained in a training centre.
10. Although he is a young offender, being 20 years of age, he is not a child and is not entitled to be treated as such.
11. The trial judge called for Training Centre reports and Probation Reports. The Training Centre Report having looked carefully at the history of the applicant came to the conclusion that he was suitable for the Training Centre programme. The Probation Officer concluded his report by saying
“The accused gave the impression that he had not done anything wrong. He put most of the blame on his friend 'Ah Wing'. He showed little motivation to change anew and open probation is considered not an appropriate rehabilitation treatment for him.”
12. The attempted robbery occurred on a stairway at night. The victim was an unaccompanied female and violence was used. It was whatever way it is looked at a serious offence. It was committed by a person who had a previous conviction for assault with intent to rob and who had, in the past, been given every chance as previous offences had resulted in his being sent both to a detention centre and to a training centre.
13. We were referred by Miss Toh to MO Kwong-sang v. The Queen[1] and it was suggested that, given that five years is the starting point for robberies in which knives or dangerous weapon are used, this sentence of 4½ years, where no such implement was used, is too closely proximate to that a minimum sentence of 5 years. We are not at all convinced that this is so, as we have already said this was a serious offence. It was committed by a person who has already been given every chance by the courts. Nothing has been urged before us to suggest that the sentence of 4½ years was in any way wrong and the application for leave to appeal against sentence will be dismissed.
Mr. A.A Bruce (Crown Prosecuted) for the Respondent.
Miss Esther Toh (D.L.A ) for the Applicant (on sentence).
Applicant in person (on conviction)
[1] 1981 H.K.L.R. 610
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