R. v. CHOW SZE HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.455 of 1996

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J U D G M E N T

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1. The appellant pleaded guilty to one count of robbery and one count of remaining unlawfully in Hong Kong. He was sentenced to 15 months' imprisonment for each count, both sentences to run consecutively. He now appeals against sentence.

2. The appellant was a Chinese resident who sneaked to Hong Kong. On the day in question, he ambushed an elderly lady aged 70, who was returning home. He pointed a wooden pole at the victim and demanded money. The victim started to run and screamed. The appellant caught up with her and hit the victim on the back and the hand with the pole and snatched $60 from her. The matter was reported to the police who made a search in the vicinity. As a result of that, the appellant was arrested and found to have the pole and the $60.

3. The learned Magistrate in respect of the robbery count adopted a starting point of two years and reduced it to 15 months. Bearing in mind the totality principle, in respect of the immigration offence, she imposed 15 months, considered that as a separated offence and ordered that it be run consecutively.

4. Before me, an affirmation was filed on behalf of the appellant. It seems that a subsequent medical examination revealed that he was not as old as he was described to be, that is to say, he was in fact 16 and not 24 at the time of the offences.

5. Counsel urges upon me that because of this fact, he should be given some further reduction. It is submitted that although youth is not a good mitigation factor in respect of robbery, it is a relevant factor in respect of the immigration offence.

6. I agree that in respect of the immigration offence, there are authorities suggesting that an illegal immigrant of a young age may be given a great reduction in sentence. One of the cases would be Wong Siu Chung, Mag. App. No.1599/89 in which a boy of 17 came to Hong Kong as an illegal immigrant and used an identity card in relating to another person. His sentence was reduced to 9 months. I do accept for the purpose of this case that if the appellant was 16, then perhaps in respect of the immigration offence, he would have been given approximately 9 to 12 months' imprisonment.

7. In respect of the robbery charge, I think there are various authorities suggesting that youth is not a strong mitigating factor although extreme youth is. In the case of Yau Wing Hong [1995]3 HKC 95 and Li Chi Ho [1987] HKLR 1233, the Court of Appeal seems to suggest that extreme youth would refer to youth under 15. The appellant here was approximately 16 at the time of the offences and could not be described as a person of extreme youth. So he could not, by any means, be entitled to a further discount. What is more in the present case, it is in my view, a very bad case of robbery. I would have thought that youth is not a mitigation factor at all.

8. Looking at the circumstances of the case, it is simply too much for this appellant, albeit a young boy of 16, to chase after an elderly lady of 70, with the wooden pole and attack her on the back and hand just for $60. I am informed that at the time he was hungry and he needed the money to meet his needs. Unfortunate he might be, I do not think that can be excuse for him to prey upon an elderly woman like this. If I were the sentencing judge, I would have imposed a sentence of more than 15 months on the robbery count. I should think that the learned Magistrate was far too lenient in respect of the robbery offence.

9. At the end of the day, I do not think the overall sentence of 30 months is in any way excessive at all. So I would dismiss the appeal.