R. v. CHEUNG WING WAI and Others

1992, No. 289
(Criminal)

H E A D N O T E

Robbery and handling - defendants aged 16 and 17 at time of conviction - circumstances in which detention in a training centre rather than imprisonment appropriate - observations by Penlington J.A. on bail in serious cases.

IN THE COURT OF APPEAL

1992, No. 289
(Criminal)

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J U D G M E N T

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Bokhary J.A.:

1. These are applications for leave to appeal against sentence. Five defendants are named in the indictment. We are concerned with three: the 2nd, 3rd and 4th defendants. Four counts are contained in the indictment. We are concerned with all four counts. The first, second and fourth counts are of robbery. The third count is of handling.

2. The robbery the subject-matter of the first count occurred on November 3, 1991. It was at the Mannings Store in Repulse Bay. The robbery the subject-matter of the second count occurred shortly after that on the 14th of the same month. It was at the same store. The robbery the subject-matter of the fourth count occurred on January 19, 1992. It was at the Wellcome Supermarket in Nathan Road. The handling the subject-matter of the third count occurred on November 3, 1991, the day of the first robbery. It was at a flat in Hennessy Road.

3. The 2nd defendant pleaded guilty to the two Mannings robberies. The 3rd defendant pleaded guilty to all three robberies. And the 4th defendant pleaded guilty to the second Mannings robbery and the handling.

4. On the occasion of each robbery, the robbers menaced the staff and customers on the premises with large knives, gagged and tied them and, in some instances, blindfolded them. Senior staff were forced at knife point to open safes from which considerable sums of money were taken. Staff and customers had their valuables and documents of identity taken from them.

5. The 2nd defendant is a man in his early thirties. He is a former policeman having resigned from the Force prior to these offences. Hitherto he had a clear record. On the two robberies of which he was convicted on his own plea, he drew concurrent terms of seven years' imprisonment, making seven years in all.

6. The 3rd defendant was a youth aged 16 at the time of his conviction. He has been in trouble with the law before. But that was back in 1989 when he was really very young indeed: convicted of theft in the form of snatching, he was sent to a boys' home. On the three robberies of which he was convicted on his own plea in the present case, he drew concurrent terms of 5½ years' imprisonment, making 5½ years in all.

7. The 4th defendant is a youth aged 17 at the time of his conviction. He was of previous good character. On the robbery and the handling of which he was convicted on his own plea, he drew five years' imprisonment on the robbery and a concurrent term of two years' imprisonment on the handling, making five years in all.

8. The 2nd defendant appeared in person before us. He put forward his written grounds of appeals, but did not seek to supplement them by any oral argument, taking the view that the whole of his case is contained in those grounds, which I propose to read. They read as follows:

"(1) When I was arrested on 14.11.1991, I did not intend or take any action to resist. Neither did I put up any violent behaviour. This shows that I am not inclined to using force and I am a kindhearted person.

(2) Since my arrest till the case was transferred to the High Court for trial, I have been remanded in Lai Chi Kok Reception Centre. In this period, I have been very repentant and introspective about the crime I have committed."

9. The sentence of seven years' imprisonment which the 2nd defendant has received is, in our view, as lenient a sentence as could possibly have been passed before we would have felt obliged to interfere so as to increase it. The learned judge gave him credit for his plea of guilty, and took into account the difficult domestic circumstances which he faced. The result is a sentence which is in no way too severe; and the 2nd defendant can consider himself lucky that we do not increase it.

10. We turn now to the other two defendants. Both of them are teenagers; and both of them are from circumstances of some difficulty. Detention in a training centre was recommended for both of them; and what we now consider is whether or not the correct course would be detention in a training centre rather than imprisonment.

11. Two things must be said at once. The first is that the offences were ones of great severity. The second is that the sentencing judge, Deputy Judge Burrell, obviously appreciated that he was dealing with young men who had in their favour favourable recommendations for detention in a training centre, so that it cannot be suggested with conviction that he was not aware of the points which have been developed before us on appeal. On the other hand, it must be remembered that detention in a training centre can be for up to three years and that even then there can be post-release supervision for up to another three years thereafter. The principal purpose of detention at a training centre is of course rehabilitation. But there can be no doubt that rehabilitation under such circumstances carries with it considerable punitive and deterrent elements.

12. There was no direct evidence - such evidence is not easy to bring forward - that these two young men were actually under the influence of the other two men tried with them: both of whom were much older and both of whom were former policemen. But when one approaches the matter in a realistic fashion, it is impossible to imagine that these young men were not under the influence, to some extent at least, of those two older ones. That is not to be taken into account against the older men; but it can certainly be taken into account in favour of the younger ones. It would appear that these two young men have not remained unscathed by their association with older men of criminal disposition; and it would be unrealistic to assume that they would not come under the influence of such characters in prison despite everything that the prison staff would of course do to protect them from the same. We are much more attracted to a means of treatment under which their contact with persons much older than them will be limited to prison staff and welfare personnel who will steer them in no direction except the right direction.

13. If these two young men are sent to training centre, then this is what they have to realize about the situation when they come out: one, they will be much older; two, they will have serious criminal records already; and, three, they will have been the beneficiaries on one occasion of the mercy of the court. If after all of that and in those circumstances, they commit serious offences again, they are likely to go to prison for a very, very long time. Whether out of gratitude to the court, through a sense of duty to their families, a sense of responsibility to the community or just pure self-interest, they had better stay out of trouble in future.

14. In the result: the 2nd defendant's appeal is dismissed; and the appeals of the 3rd and 4th defendants are allowed to the extent that the sentences of imprisonment passed on them are set aside and replaced by orders for detention in a training centre.

Penlington J.A.:

15. I would just myself like to add one note, having considered this matter, regarding the granting of bail.

16. Apparently the 1st accused, one Chan Ching Long, absconded. He was subsequently re-arrested but the charge against him was not proceeded with. The 3rd accused, Ma Wai Kit, while on bail for the robbery in the Mannings Store in Repulse Bay committed another offence of robbery on the Wellcome Supermarket in Nathan Road. These were very serious offences. The evidence against the accused was overwhelming and they were caught red-handed. For myself, I find it singularly surprising that bail was granted and I note with even more astonishment that the 3rd accused was still on bail at the time when he was tried in the High Court. I think bail in this type of case when there is strong evidence against a defendant should be granted only in exceptional circumstances which were certainly not present here.