ATTORNEY GENERAL v. CHAN WAI MAN

IN THE COURT OF APPEAL

Application for Review
1995, No.21

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This is an Attorney General's application for review of an order made by Gall J. sentencing the respondent to detention at a training centre.

2. The respondent committed four robberies on victims in lifts in Yiu Cheong House, Tin Yiu Estate - the housing estate in which the respondent lived. On each occasion be brandished a cutter and robbed the victim of either jewellery or money. He was arrested shortly after committing the last offence on 1st July 1995. The previous offences had been committed during the month of June. He was at the time of the arrest 17 and had a clear record. He had been a drug addict but it seems that he has now rid himself of that addiction.

3. The trial judge said when sentencing:

".... you have had the benefit of a very persuasive mitigation from your counsel. You are young, you have no previous convictions and you have entered pleas of guilty to the counts before me. They are serious offences of violence and dishonesty. And if it were not for your age and your record and the remorse shown by your plea, I would impose a very substantial period of imprisonment, and that is what will happen if you offend again in future.

The correctional services officer who prepared your suitability report for the training centre says that you may stand a chance of success in turning over a new leaf if given due and adequate social intervention. She goes on to say, 'A course of disciplinary training coupled with a period of after care supervision would be expedient for your rectification.' I agree. You are sentenced to be detained in a training centre."

4. The Crown submit that the guidelines in Mo Kwong-sang are clearly applicable and should have been followed and that a sentence of imprisonment should have been imposed. Mr. Blanchflower, who appears for the Attorney General, points to the type of crime (lift robberies armed with a cutter), to the victims (single women in three cases), to the multiplicity of the offences, to the fact that they must have been carried out after some degree of observation and planning and to the fact that the applicant, who is 17, does not fall into the category of extreme youth. He urges that the public interest calls for a sentence of imprisonment and that this interest must prevail over the interest of the individual offender. These are difficult decisions for a sentencing judge. One of the things which he must ask himself is whether the public interest requires a prison sentence, carrying along with it the deterrent effect that such a sentence will have, or whether the public interest would be better served by having the person undergo a period of training with the real possibility that upon release he will have been reformed and will, therefore, live a stable and decent life. Both of these matters must be weighed by the sentencing judge.

5. We have said in this court on a number of occasions that before the guidelines in Mo Kwong-sang are departed from there must be some cogent reason, the words "exceptional circumstance" have been used, for so doing. Mo Kwong-sang is, of course, not a straight jacket. Mr. Blanchflower has, however, argued that on its face it has clear application to the facts of this case. We must look to see is whether there is any factor or combination of factors which would justify a departure from those guidelines.

6. The applicant comes from a good family. He is the last of 9 children. He was forced, because of the problem with his eyesight to give up school and to commence work at the age of 14. The training centre report indicates that not too long after he went out to work he fell under what is described as 'bad peer' influence. It seems that he had no chance as a person of maturity to set himself upon a proper course in life. We bear that in mind and consider it to be a factor of real substance. We also bear in mind that he has a supportive family. His mother has said that from now on the family will supervise him in a much more positive way than has been done in the past. We bear in mind also, but this is not a factor of very substantial weight, that all of the offences were committed in a short space of time.

7. We, equally with the judge, have had difficulty in coming to our conclusion in this matter. However we find ourselves at the end of the day unable to say that this is a case in which there did not exist the circumstances sufficient to justify the order made.

8. The Attorney General's application must, therefore, be refused.