THE QUEEN v. CHUNG HON PING(D1) AND ANOTHER

IN THE COURT OF APPEAL

___________

JUDGMENT

___________

Li, V.-P.:

1. This is an application for leave to appeal against sentence by the two applicants. They were two of three persons originally charged with two offences - one count of robbery and one count of rape. The 1st applicant (Dl) pleaded guilty to both robbery and rape. The 2nd applicant (D3) pleaded not guilty to both counts. In the event the Crown offered no evidence against D3 in respect of rape and D3 was convicted, after trial, of robbery. D1 was sentenced to a term of 5 years for the robbery and 6 years for the rape. However, the judge ordered that the sentence of 6 years would start to run only as from the 1st of November 1986. Thus the totality of sentence that Dl has to serve will be 8 years imprisonment. D3, for the count of robbery, was sentenced to 6 years imprisonment. The sentences were passed after a Probation Officer's report and a report by the Intake Officer of the Correctional Services Department have been obtained in respect of both defendants.

2. The evidence leading up to the conviction of the two defendants was that on the 7th of April last year these applicants together with a third boy of 15 accosted two young couples in a lonely beach in Ching Lung Tau at about 10 p.m. They used a Kukri knife to frighten the victims, tied them up and robbed them of their possessions set out in the robbery charge. In the course of the robbery D1 dragged the girl away from the group to another part of the beach and raped her.

3. In mitigation it was suggested that the rape was spontaneous; the girl was not physically injured; and she was not a virgin. DI pleaded guilty and the probation report disclosed that D1 was 20 years old, had full employment and was happily married and had a 2 years old son. The family is supportive and maintains that there was no reason why he should commit such offences. D1 was born and brought up at Ching Lung Tau. He lived in a hut with his wife and son and his education standard is Form 1. He worked first as a delivery hand after school and was then employed in the hair design field for the past five years earning about $2,000 a month. He had one previous conviction in 1981. On the 19th of June he was convicted of blackmail and was put on probation for 18 months. The probation officer reports that his response to probation for that period was fair, albeit there were minor troubles. Having regard to his lapse he was considered not suitable for probation. The intake officer's report indicates that he is suitable for training centre.

4. In passing sentence the judge had taken all these into consideration. Everything that could be said in his favour had been said very ably by defence counsel. These are serious offences -robbery at night on a beach and coupled with rape. We do not feel that a totality of 8 years imprisonment is excessive.

5. Before us counsel reiterates his young age. He contends that the tariff of 11 to 12 yesrs is too high and that judge did not give sufficient consideration to his plea of guilty. We do not feel that the tariff sentence the judge had in mind is too high for such offences. D1 had been given a discount of 3 to 4 years in respect of these two offences for his plea of guilty. In the circumstances we a find there is nothing wrong in the sentences imposed. For these reasons the application for leave to appeal against sentence by D1 is refused.

6. We now come to Dl. He was also brought up in Ching Lung Tau. He is 18 years old and has a clear record. His educational background is more or less like that of D1. His mother died when he was seven years old but he continued in school without trouble until he reached Form 1 when his behaviour lapsed and he was expelled from school. His father commented that he had no problem with his son's behaviour. He started work after he left school in a private detective agency. Then he changed his job to that of a delivery worker in the Tom Lee Piano Company in Kowloon. Subsequently he changed his employment to that of an apprentice cook and was subsequently promoted to be assistant cook. He lives with his aunt who also gives a favourable report about him. In view of the seriousness of the offence the probation officer did not recommend probation. In any event the probation officer found that there was little genuine remorse and that D3 took a defensive attitude. The intake officer's report indicated that as his mother died when he was very young he was deprived of maternal guidance and. had very little parental control. He is still a young person and a first offender. For that reason the intake officer recommended training centre order.

7. Learned counsel in his usual persuasive manner suggested that, in view of his age and clear record, a tariff of 6 to 7 years is too high. The 6 years sentence imposed is close to the highest point of the tariff. There is some force in the argument as far as D3 is concerned. It is true that according to the tariff a case of this nature merits a sentence of 7 years. However, in view of his age and clear record we are prepared to reduce his sentence. We are not inclined to make a training centre order since he is convicted of a serious offence. Instead we give a greater allowance for his age and clear record. Accordingly we grant leave to appeal against sentence by D3 and treat the application as the appeal itself. We allow the appeal and vary the sentence to one of 4 years imprisonment.