ATTORNEY GENERAL v. SZE TING WAH

IN THE COURT OF APPEAL

Application for Review
No. 1 of 1995

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J U D G M E N T

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Hon Yang, C.J.:

1. This is the Attorney General's Application for Review of a sentence imposed by Deputy Judge Yeung (as he then was) on the respondent, Sze Ting Wah, in respect of three charges of robbery, one charge of false imprisonment and one charge of taking conveyance without authority.

2. The learned trial judge, having considered all the facts of the case, the respondent's plea of guilty after the conclusion of the voir dire proceedings, and all other factors in mitigation, sent the respondent to the training centre for a period of training.

3. It is the Crown's case that the sentence was both wrong in principle and manifestly inadequate.

4. It should be noted that the respondent was at the time of the offences almost 17 years of age. The judge, before passing sentence, took the precaution of calling for the Probation Officer's Report and the Detention and Training Centre Reports.

5. The facts of the charges could be summarised as follows. On 1 August 1991, a 15-year old boy was accosted by the respondent and two of his accomplices and he was robbed of his personal belongings. His hands tied with wire. The robbers also took away from the victim his student's card and the keys to his parents' apartment. They took the victim to the apartment in question and entered the apartment by using the keys, and there they tied the victim's younger brother and threatened him with a knife. After searching the brother's room, they entered the bedroom of the victim's parents whom they also tied up, and after ransacking the room, they got away with cash to the tune of some $10,000. These are the facts of counts 1 and 2 and 3.

6. Later the same day, the respondent and his accomplices went to a stone hut in Yuen Long. They were armed with a knife. They accosted the occupant, tied him up and ransacked his room. They got away with property in excess of $200,000 in value. These are the facts of count 5.

7. In making their escape, they stole a light goods vehicle and later abandoned it. Those are the facts of count 4.

8. In passing sentence, the learned trial judge took into consideration the fact that this respondent was younger than a co-respondent who had been sentenced by another judge to a terms of imprisonment totalling 6 years. He also took into account that the respondent was influenced by others. Other mitigating factors taken into account were that he had a clear record, that he had a supportive family and that there was some chance of rehabilitation.

9. In our view, this sentence was a clear departure from the guidelines laid down in the well known cases of The Queen v. Mo Kwong Sang [1981] HKLR 610 and of Attorney General v. Li Chi Ko [1987] HKLR 1233. These two authorities were considered in the latest case on the topic namely, Attorney General v. Yau Wing Hong [1995] 3 HKC 95.

10. It is clear from the authorities that the age of the respondent at the time of the commission of the offences could not be described as that of "extreme youth", though, of course, as a teenager, some consideration ought to be given to him in passing sentence as one of the mitigating factors. Other than this particular point, there are hardly any other mitigating factors. The plea of guilty came not at the beginning of the trial but after the voir dire, we are however prepared to give some credit for this plea, coming as it did at a late stage.

11. Taking all the circumstances into consideration, we would allow the appeal and quash the sentence of training centre, we impose the following sentences: Counts 1, 3 and 5, six years on each; Count 2, two years; Count 4, six months. Sentences to run concurrently. We are satisfied that as a matter of totality, this term of imprisonment is appropriate.