R. v. WONG KAM WAH AND ANOTHER

IN THE COURT OF APPEAL

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Four defendants appeared for trial before His Honour Judge Whaley on a charge sheet containing five charges. Of those four, we are now concerned only with the 3rd defendant - Wong Kam Wah, aged 18 years and the 4th defendant - Choy Kwok Keung, aged 16 years. Wong pleaded guilty to the first charge, conspiracy to rob which was alleged to have taken place on 13th September 1990 at Yuen Long, the other three defendants being named as co-conspirators. He also pleaded guilty to the fourth charge, that of remaining in Hong Kong without authority, the particulars being that, on 13th September 1990 at Yuen Long, having landed in Hong Kong unlawfully he remained in Hong Kong without the authority of the Director of Immigration. He was sentenced to a period of 3 years on the conspiracy charge and 15 months imprisonment on the Remaining charge. The sentences were set to run consecutively giving a totality of 4 years and 3 months imprisonment.

3. Choy was convicted after trial of the conspiracy charge and had pleaded guilty to the Remaining charge. He received similar sentences.

4. They both now seek leave to appeal against those sentences - Wong being in person and Choy having the advantage of being represented by Mr. Albert Tsang, instructed by the Director of Legal Aid.

5. The background facts were that in the early hours of 13th September, a party of police officers had noticed a group of men walking up a lane which led to a secluded residential development called "Winky Gardens". The group noticed the police and attempted to escape. Four of that group were caught, one escaped. The four were the defendants at trial. The 2nd defendant Cheung Yat Kwong held a travelling bag which contained screwdrivers, wrenches, a roll of masking tape, a kukri knife, four woollen ski-masks, three pairs of gloves and a torch. Wong had a folding knife and a beef knife. Choy had a machete with a 20 inch long blade. In contradistinction to the 1st and 2nd defendants, Wong and Choy were both illegal immigrants.

6. The sentences imposed on the Hong Kong residents are of some moment, D1 who is aged 20 had a Training Centre order made in respect of him. D2, under 21 at the time of the offence, had a criminal record, had committed the offence while on bail and had been earlier in a Training Centre. A sentence of 5 years imprisonment was imposed upon him. The trial judge took, for all the defendants, a starting point of 6 years imprisonment having in mind that which was said in R. v. Mo Kwong Sang [1981] HKLR 610. Further, we note that while the 1st, 2nd and 3rd defendants were sentenced at the same time, the 4th defendant, Choy, was sentenced. on a separate occasion but by the same judge.

7. In his written grounds in support of his application Wong suggests that he was led into the offence by the eloquence of a man who had introduced him to a  job when he had earlier entered Hong Kong illegally - this was probably the man who escaped arrest by the police. He emphasised his guilty plea and adds, as he reiterated again in court, that he has an aged and sick mother in China.

8. The grounds advanced by Mr. Tsang for Choy mainly centered on his age of 15 years and 10 months at the time of the offence. It was suggested that the trial judge had failed to give due regard to the "extreme youth" of Choy; that Choy, had he stood alone, would have been tried in the Juvenile Court; that the judge failed to consider remetting the case to the juvenile Court for sentence. Further, it was submitted that Choy's clear record, that he was a first time illegal immigrant, that he was the youngest member of the gang and that he was under the influence of Wong would, leaving aside the unlawful entry, were he a Hong Kong resident, have resulted in his being sent to a Detention or Training Centre. It is further submitted that the trial judge erred in law in ordering the 15 months imprisonment on the Remaining charge to run consecutively with the 3 years imprisonment imposed on the conspiracy charge, the totality of 4 1/2 years being manifestly excessive and/or wrong in principle in the circumstances of the case.

9. First: to deal with the general starting point taken by the trial judge. Criticism has been levelled at him for bearing in mind the guidelines set out in Mo Kwong Sang. It is clear that the judge did have in mind the various features which aggravate a general robbery offence. He stated himself to be aware that there are circumstances where a conspiracy will call for a lighter sentence than the substantive offence. However, he considered that, in the circumstances here, this did not apply. We find nothing wrong in the starting point he took, or the period of 3 years to which he finally came. He gave discounts for the pleas of guilty, where appropriate and bore in mind the general backgrounds of the applicants and the totality aspect.

10. The judge was very conscious of the age of both of these applicants, he obtained Training Centre and Detention Centre reports in respect of both, but rejected those sentencing alternatives, the Commissioner of Correctional Services having stated in his general report that he did not consider either to be suitable for detention in those places. The basis for the rejection was that it would be impractical to administer the statutory aftercare supervision which is part and parcel of the effective programmes in those sentences. Supervision is an essential part of a Detention or Training Centre order for it assists those who have been detained in such a place to re-enter society after either the short sharp shock or the more lengthy period of training which they have received. Where an illegal immigrant is facing deportation, as will inevitably be the case, then neither programme could be effective.

11. Turning now to the particular circumstances of Choy. Mr. Tsang accepts that he did not suggest to the trial judge that he exercise an option to remit the matter to the Juvenile Court. Under the provisions of the Juvenile Offenders Ordinance, Cap. 226, a "young person" is a person who is, in the opinion of the court, 14 years of age or upwards or under the age of 16. At the time of trial, Choy was over 16 years of age. Section 3F(1) reads:

"If a child or young person is found guilty of an offence other than homicide by any court other than a juvenile court, the court shall, unless satisfied that it would be undesirable to do so, remit the case to a juvenile court; and where any such case is so remitted the offender shall be brought before the juvenile court accordingly, and that court may deal with him in any way in which it might have dealt with him if he had been tried and found guilty by that court."

12. While that option may, and we express no decided opinion on that, have been open to the trial judge, nevertheless, the whole tenor of his Reasons for Verdict indicates quite clearly that in the circumstances of this case he would have felt it undesirable to remit the case to a juvenile court. We do not fault him for that. If a youth of this age carries a weapon with a 20 inch long blade on a voyage of robbery with other and older persons, we find no reason why he should not be dealt with as Choy was.

13. We have, as did the trial judge, considered the background reports and while Mr. Tsang has suggested that these were "favourable" we would have thought they would be better described as "not unfavourable". It may be that had Choy been a Hong Kong resident serious consideration would have been given by the trial judge to a Training Centre order. But the fact remains that he is not. While the trial judge could have refused to act upon the recommendations of the Commissioner of Correctional Services, given that a place was available, we do not think that he was wrong to take the course he did.

14. That having been said, in relation to the Immigration Ordinance offence it would have been proper to take the youth of Choy into consideration. As the Chief Justice said in R. v. Wong Siu Chung, Mag. App. No. 1599 of 1989, an unreported judgment delivered on 15th March 1990:

"I think, however; that for defendants under 18 years of age, very special considerations should be given."

15. There he was dealing with the sentence imposed upon a boy of 17 years for the use of an identity card relating to another person. He reduced the sentence to one of 9 months imprisonment. While, given that which was said in R. v. Ng Kin Hung [1991] 1 HKLR 81, the approach of the Chief Justice may have been a generous one, nevertheless, we are conscious that Choy was under the age of 16 at the time of the commission of the offence and may well have been influenced by his older co-conspirators. In our judgment, a sentence of 9 months would have been appropriate.

16. We see no reason to interfere with the sentences imposed on Wong and his application for leave to appeal is refused.

17. We would grant leave, treat the hearing of the application as the hearing of the appeal and allow Choy's appeal in the manner indicated.