THE QUEEN v. WAN HEI PING AND OTHERS

IN THE COURT OF APPEAL

1981, No. 113
(Criminal)

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. These applications for leave to appeal against sentence arise from an incident that took place on the 27th April 1986, in a village near Yuen Long. There a Mr. Wong lives with his three married daughters and one unmarried daughter. Each of the married daughters has a room on the first floor of the premises which she shares with her husband and with her family.

2. At about 3 o'clock in the morning of the 27th April, two of the married couples were suddenly awakened by intruders breaking into their rooms, armed with knives. There were seven men all told. In one room, occupied by Mr. and Mrs. Man, the couple were tied up and were gagged. They were relieved of a finger ring and of money, and they were threatened that if they made a noise their children would be killed.

3. In the next adjoining room were Mr. and Mrs. Ching. They likewise were threatened that they should keep quiet. But they defied the threats and shouted out. This caused the robbers to panic and to flee through a first floor window. But somehow or other, in the course of all that both Mr. and Mrs. Ching received cut wounds from the knives carried by the robbers.

4. Having reached the ground, the robbers piled into a car that they had hired especially for the occasion, and made off. But unfortunately for them they attracted the attention of a patrolling police car by jumping a red traffic light. In the ensuing chase the robbers managed be overturn their vehicle. As a result one robber was caught immediately. The others managed then to escape, but were arrested later. They included the three now before us, who were indicted before Hopkinson, J. and a jury with two counts, one of robbery and one of assault with intent to rob. They were convicted after trial. The judge sentenced them to concurrent sentences of respectively 9 years, 8½ years and 7½ years. It is against those sentences that this morning they apply for leave to appeal.

5. Wan Hei Ping, the 2nd Defendant below, is aged 21 years. He had a clear record. At the time of the incident he was helping his father to run a stall in Shatin which his parents had purchased with a view to providing a future for him and his younger brother. He made use of his father's van on the occasion of the robbery and in addition, it was he who hired the car that we have previously mentioned. It was also he who took part in the tying up and gagging of Mr. and Mrs. Man.

6. Mr Cheng Huan, who appears for him this morning, has given us the detail of the family background. It is a very good family and their son's misbehaviour must have caused them a great deal of sadness. However, we have also to bear in mind other families whose children do not misbehave and who are entitled to the confident expectation of sleeping safely in their beds at night.

7. A sentence of 9 years is a heavy sentence, but this Court has said on many occasions that those who take part in serious and violent crimes of this nature, whether they are young or not, must expect heavy sentences. We are not persuaded that this sentence was manifestly excessive.

8. The other two, Chui Lo Chuen and Lau Wai Kin, both have a certain amount in common. Both are in their late teens. Both were brought up without adequate parental control. Both dropped out of school and since then have to a large extent spent their time with undesirable companions. Both have already been sent to a detention centre and both have been recalled for misbehaviour during the supervision period.

9. The judge differentiated slightly between them. That was because Chui actually held a knife during the incident while Lau merely rummaged through drawers to see what he could find. And also because Lau had a slightly lesser criminal record.

10. Mr. Hemmings, who has appeared for Lau today, in a very able submission has suggested that we give consideration to changing his sentence to one of detention in a training centre. He has referred us in detail to the report from the officer of the Correctional Services which he submitted indicates there is still scope for optimism. We feel bound to observe however that the Probation Officer's Report presented a less favourable view of the Defendant.

11. A Training Centre Order was, of course, an option open to the judge below. But it is an option that is rarely exercised for serious robbery unless there are exceptional circumstances. We find none here. Youth in itself, as this Court observed not so long ago[1], is not an exceptional circumstance. We must also point out that the provisions of Section 109A of the Criminal Procedure Ordinance, Cap. 221, do not apply to a person convicted of robbery. We cannot say that the judge's choice of imprisonment, rather than to make a Training Centre Order, was wrong. Again, although the sentences passed are heavy, we do not find them manifestly excessive.

12. For these reasons, all the applications are refused.