R. v. LAM CHI YAN

IN THE COURT OF APPEAL

1995, No.165

(Criminal)

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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. The applicant in this matter faced two charges, one of remaining in Hong Kong without the authority of the Director of Immigration and one charge of robbery. The applicant came to Hong Kong as an illegal entrant and was such at the time of the robbery, i.e. 24th May 1994. The robbery was committed in company with two other persons. At about 9:40 p.m. on that evening two sisters were walking home along Lung Sum Avenue when suddenly a male rushed out and blocked their path. He was armed with a 4" knife and he declared robbery in Mandarin. As he was doing so three other males emerged and two of them was armed with a sharp object. One of the sisters' travelling bag was snatched. She struggled and was pushed to the ground and the robbers then fled. The police were summoned and the applicant and two others were found hiding in bushes nearby. The applicant was, very shortly after, identified. He subsequently made admissions under caution. He had come to Hong Kong, it appears, on that very day.

2. The trial judge when sentencing said:

"This was a Robbery at night. There were 4 robbers, all male. The victims were female. There were two 'victims', though only one of them actually lost property in the robbery. The odds were all in the robbers' favour.

Three of the 4 robbers held a knife or sharp objects, displayed to the victim. Even though the Defendant (D2) did not carry a sharp object, the conduct of the group of robbers is attributed to him.

Fortunately the weapons did not have to be used, or were not used. Apart from the threat of violence, the only force was in the act of snatching and the pushing of the victim to the ground.

The starting point for a robbery of this kind is 5 years."

The trial judge was not correct when he stated that the starting point for robbery of this kind was five years. The guidelines in Mo Kwong-sang indicate a starting point of at least six years. The trial judge went on:

"The Defendant has a clear record in Hong Kong. That is not surprising because he is not a citizen of Hong Kong. The only mitigation of significance is his plea of Guilty, for which I give him credit. His plea of Guilty was forthcoming on the first day of his trial, 7 months after his first appearance in the District Court.

On the Robbery charge (Charge 4), D2 is convicted and sentenced to 3½ years imprisonment.

The two offences should be sentenced consecutively. Although the two offences were committed on the same day, they were separate acts of the Defendant's will. He could have stopped after committing charge 2: he did not have to go on to commit the Robbery."

He then made the sentence of 15 months' imprisonment on the illegal entrant charge consecutive to the 3½ years which he imposed on the robbery charge.

3. When this matter originally came on for hearing Mr. Hatton, for the applicant, drew to the Court's attention that the applicant contended that he was much younger than the trial judge had believed him to be. The heading to the charge sheet stated that he was 22 years of age and he was dealt with upon that basis. Mr. Hatton said that he was, in fact, only 16 years and 2 months at the time when he committed the offence and was only slightly older when he was sentenced. In consequence of this we adjourned the matter and asked for a medical report. That report from Dr. Wong Cho Kat at Lai Chi Kok Reception Centre states that the radiologist of Princess Margaret Hospital reports: "Bone age is 17-18 years". The judge was, therefore, dealing with the man much younger than he believed him to be. The real significance of this is that it indicates that he was very much younger than his co-offenders. They were, as stated in the charge sheet, 22 and 24. He was just over 16. We think this was a matter which should have been taken into account not because his age indicated such extreme youth as would warrant a reduction in sentence but because it was such, when compared to that of the other two offenders, as to indicate that he should not beear the same degree of culpability as could properly be apportioned to them. Mr. Hatton has asked us to bear that in mind and also that the two other offenders were sentenced by Judge McMahon to 3½ years and 15 months, the same periods as the sentences imposed on the applicant, but that those sentences were ordered to be concurrent. In the outcome the two older and more culpable offenders were sentenced to a lesser overall periods of imprisonment than that imposed on this applicant. We say as we have said before, that the fact that an offender in another court is given a more lenient sentence than he deserved is no ground for interfering with a proper sentence imposed on another offender in another court. However, in this case we are satisfied that the sentence was not a proper one. The starting point for a robbery of this kind should have been six years. The reduction for plea of guilty should have been to a sentence of four years. We are satisfied that, while it was proper to order that the sentences be, to an extent, consecutive, given the totality principle, they should not have been made wholly consecutive. The order should have been that six months of the immigration offence be consecutive to the four years making a total sentence of four years and six months. Taking into account, however, the degree of culpability of this offender, to which we have referred, we are satisfied that it would be proper to reduce the sentence of four years on the robbery charge to one of three years. We order that the sentence of 15 months on the immigration offence be consecutive to the extent of six months, making a total sentence of three years and six months.

4. We treat the hearing of the application as the hearing of the appeal. We allow the appeal and we vary the sentence of 3½ years on the robbery charge to one of three years and order that six months of the 15 months imposed on the remaining charge be consecutive to the three year sentence making a totality of 3½ years.