HKSAR v. CHENG KAU WING

HCMA 975/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 975 OF 2002

(ON APPEAL FROM ESCC 2187/2002)

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J U D G M E N T

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1. You were convicted, with another youth, of a charge of robbery. In short, the two of you attacked a lone female in the street in the early hours of the morning, stole her handbag and made off. Due to the intervention of an off-duty police officer you were apprehended.

2. You pleaded guilty and agreed the summary of facts. This was your first conviction. Because of your age, 17, the Magistrate called for pre-sentencing reports. You were found to be suitable for probation supervision, the performance of Community Service and admission to Training Centre. Because of your health you were found to be unsuitable for admission to Detention Centre. You were committed to Training Centre. Insofar as it is relevant your co-accused, also 17, was committed to Detention Centre.

3. This was a robbery which involved the snatching of a woman's possessions. It occurred, as I noted, at night. The woman was not injured. Her property was recovered. Offences of this nature, for an adult, carry immediate custodial sentences even for a first offender. Because of your age special considerations apply. The Magistrate was aware of that. He considered the reports before him and the sentencing options available to him.

4. You have received a sentence different from that of your co-accused. The reality is that it may turn out that you spend a longer period in Training Centre than does he in Detention Centre; your period of after-care supervision may be longer. I recognise that. It is clear from the record that the Magistrate recognised it, too.

5. Reference has been made on your behalf to the principle of disparity. The important aspect of that principle is that a person has to show that he has been sentenced to a longer period of incarceration than another, more culpable, offender. The agreed evidence is that it was your companion who took hold of the woman but you who actually relieved her of her property. You were still carrying it later when you were intercepted. Your culpability is, at the very least, equal to that of your co-accused. In the context of this matter, you would have a valid complaint only if your co-accused was more culpable in the execution of the offence than were you. He was not.

6. Nowhere in his reasons for sentence is there anything to suggest that the Magistrate would have committed you to Detention Centre even had you been physically fit. He decided upon an individualised sentence for each of you. He made his decision in respect of you based on the information he had before him. Likewise he made his decision on your co-accused based on the information he had before him about that person. Sentencing young persons is never simple: it is in such matters that the experience of the Magistrate is invaluable. In this matter, he came to the conclusion that different sentences were appropriate.

7. There is one further facet to this matter. I, too, have considered the reports. The sentence imposed upon you is entirely appropriate both from the perspective of the offence and the offender. It is the sentence which I would have imposed upon you.

8. The appeal is dismissed.