R. v. WONG PIT SHING and Another

IN THE COURT OF APPEAL

1996, No. 510

(Criminal)

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H E A D N O T E

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Sentence - extreme youth - Simple calendar approach to age not satisfactory. Factors to be weighed in determining whether extreme youth can be a mitigating factor in a case of serious robbery.

IN THE COURT OF APPEAL

1996, No. 510

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The 1st Applicant A1 who was the 1st Defendant D1 at the trial below originally sought leave to appeal against his convictions on two counts of robbery. However he abandoned his application in relation to the first count. He also seeks leave to appeal against the total sentence of 15 years' imprisonment imposed upon him on these two counts.

2. The 2nd applicant A2 who was the 3rd defendant D3 below seeks leave to appeal against his conviction for the second robbery and against the sentence of 15 years' imprisonment imposed upon him for this.

3. These were violent robberies. Both occurred at houses at Shatin Knoll.

4. The robbery referred to in count 1 occurred in the early hours of the 3 November 1995.

5. The victims of the robbery a husband and wife had recently moved into their new home. The husband had secured the premises and gone to bed with his wife. At about 4pm he woke up and saw the shadow of a man. He shouted and this awoke his wife. The man pointed an object resembling a pistol at him and told him that it was a pistol.

6. He covered his mouth and told him to keep quiet. One of the men who was with him had a knife and held his wife. The husband was tied up. The wife produced a total of $56,000 in cash and various items of jewellery valued at $80,000 and gave these to the men. They then cut the telephone wire and left. A report was made to the police.

7. The police attended at the premises. The evidence upon which A1's conviction was founded was the matching of a palm print found on the door to the garden of the house to an impression taken from A1.

8. The robbery the subject matter of the 2nd charge occurred on 29 November 1995. The victims in that case were a husband and wife and a young son. The wife gave evidence of waking up in the middle of the night and seeing three men in her bedroom. One of the men was hitting her husband with an iron rod wrapped in some material. She attempted to protect her husband but was prevented from doing so. One of the men - who the judge said she later identified as D3 (that is A2) told her not to make a noise and to take money out quickly. She told him he could take all the money there was. This same man told the husband that if he attempted to make a telephone call he would be beaten to death. The men then left. It was later ascertained that a Rolex watch and cash from a wallet had been stolen the total value of which was $15,000. A report was made to the police and the husband was taken to hospital. It was necessary for the husband to remain in hospital for 40 days.

9. The salient feature of this robbery was that the prosecution case was solely dependent upon the identification evidence of the wife. The wife picked out A1 and A3 at an identification parade which was conducted 28 days later.

10. Saied J gave detailed Turnbull identification directions.

11. The first and second grounds of appeal focus on this. It is contended that the physical conditions pertaining at the time of the robbery were such that the judge should have withdrawn the charge from the jury. For the reasons which follow we are unable to agree.

12. Having regard to the detailed evidence given by the wife and the explanations she gave as to how she was able to identify the applicants it was clearly necessary for the judge to decide whether there was sufficient evidence to enable the jury to safely convict these men.

13. The main problem which arose in connection with the identification evidence was that the descriptions given by the wife of the robbers to the police did not accurately correspond with the applicants' actual appearances.

14. In particular the wife expressed an opinion that the men were aged between 30 and 40 years of age when in fact they were both in their teens. The wife was cross-examined at some length about this. The fact of the matter is that it is not easy to describe the appearance of another person, and that is particularly so in the present case where neither of the men have any obvious physical peculiarities.

15. It should also be observed that when the wife did give the descriptions to the police she was in a state of considerable stress as her husband was receiving medical treatment in the intensive care unit of the hospital.

16. What was important was that the wife did inform the police that she had had ample opportunity of observing A1 and A2 and she had experienced no difficulty in picking the men out in a properly conducted identification parade.

17. The judge gave meticulous Turnbull directions to the jury. All of the features of the identification were clearly before the jury and it was for them to determine whether they could be satisfied of the appellant's identification.

18. There is accordingly no basis to interfere with the jury's verdict.

19. The next issue which was raised by Mr McCoy for A2 was that the judge made an error in describing the situation to the jury. He mistakenly said that it had been D3 that is A2 who had prevented the wife from assisting her husband when he was being belaboured with the iron rod and who had manhandled her and not D1 who had in fact assumed this role.

20. Looking at this error in the general context of the evidence it is quite clear that this error was a slip of the tongue. From what Mr Bruce QC for the Crown described as the general choreography of the situation it would have been obvious to the jury that the judge had intended to refer to D1 rather than D3. We do not think that the jury could have been under any mistaken impression as a consequence of this error. There is nothing in this ground.

21. The third ground is without merit. It is stated that the modus operandi of the two robberies was so different that it was plainly the case that the robberies were committed by different gangs. This contention is simply untenable.

22. The final ground relates to the manner in which the jury brought in their verdict on this count in relation to A2. Initially the foreman stated that they were unable to agree as they were split 4 votes to 3. After all the other verdicts were returned the judge asked the foreman if there was any prospect of their being able to reach an acceptable verdict and he replied in the affirmative. The judge directed them to continue in their deliberations and emphasized that there was no need for them to be in a hurry in reaching their determination. The jury retired at 12.49pm and resumed at 2.33pm when they delivered a verdict that A2 was guilty of the offence. They reached this verdict on a 5 to 2 majority. There was nothing irregular in this; nor does it lend any support to the other grounds so that their cumulative effect, as contended by Mr McCoy renders the conviction unsafe and unsatisfactory. There is no reason why this verdict should not be allowed to stand.

23. A1 who was unrepresented on this part of the appeal did not add anything of any significance in relation to this count.

24. The convictions are in no way unsafe or unsatisfactory and this application is dismissed.

Sentence

25. These were very young men. A1 was aged 14 at the time of the offence and A2 appears to have been about 16 or 17 according to a bone test which was conducted upon him.

26. Both youths were recent illegal immigrants from China. In his Reasons for Sentence the judge accepted that the extreme youth of A1 was a factor that had to be weighed in the balance. He was given some credit for this.

27. The judge considered that most of the aggravating factors referred to in Mo Kwong-sang applied to both cases.

28. However having regard to the very serious injuries sustained by the husband on the 2nd charge he regarded this robbery as the more serious of the two.

29. In the perfected grounds of appeal it is contended that the sentences imposed on both men were manifestly excessive.

30. Mr McCoy who represented both men on the application relating to sentence raised two main points.

31. The first was that it was unrealistic to attempt to apply the previous case law in the way that the courts should treat extremely youthful offenders simply on a calendar basis.

32. In arriving at the sentences he imposed upon the two applicants the judge said this at p. 75P of the record:

"And it is also a settled sentencing principle that save in exceptional circumstances a term of imprisonment ought to be imposed in a case of serious robbery and youth of itself is not such an exceptional circumstance, although extreme youth might be, and that means that a person older than 15 cannot plead extreme youth."

He continued at p.76:

"[As to] count two, as I said the 1st defendant is over - just over 14 and the 3rd defendant is between 16 and 17, so D3 cannot plead extreme youth, D1 can. Considering the circumstances of this robbery in count two, I am of the view that it was a far more serious one than count one, and in this case my starting point is 15 years, which I reduce to 13 for D1, and D2's sentence remains at 15."

As Mr McCoy points out, on account of the built in tolerances in the bone test which had been conducted upon D3, it was quite possible that there was only a few months difference between the ages of the two youths. He submitted that what was necessary was to have regard to the overall circumstances of the case and that the authorities the judge had in mind needed to be reviewed. The latter he identified as Attorney General v Yau Wing Hong [1995] 3 HKC 95 at 98F where Power V-P giving the judgment of the Court quoted the following from AG v Li Chi Ko [1987] HKLR 1233:

"It is settled law that, save in exceptional circumstances, a term of imprisonment ought to be imposed in a case of serious robbery as this one was, and youth itself was not such an exceptional circumstance, although extreme youth might be."

He then went on to say:

"'Extreme youth' in the case of Li Chi Ko - the defendant was just over 15 - is an exceptional circumstance. We are satisfied that a person older than that cannot plead 'extreme youth'."

In AG v Law Chung Yin Yang CJ in giving the judgment of the court concerning the sentence upon an offender who was 18 years of age referred to Yau Wing Hong and the passage from Li Chi Ko.

33. We do not think these cases are authority for the proposition that extreme youth ceases totally to count as a potential mitigation factor or exceptional circumstance at exactly 15 years of age. That could not have been the intention of the relevant passages in the two cases. Moreover this Court has repeatedly stated that a mathematical approach is to be discouraged.

34. Reverting to the present appeal, from all the judge said, and not merely the two passages we have quoted, it does not seem that the difference between the two sentences turns entirely upon the ages of the two applicants and the extreme youth of the 1st applicant. Nonetheless, we accept that it was necessary to have regard to the overall circumstances of the case. We also accept that in this case it is unrealistic to attempt to differentiate on age in the sharp way the judge appears to have done.

35. The present context is that of whether, and to what extent extreme youth is in the nature of a mitigating factor in serious crimes like robberies. It can be clearly contrasted with the different context of the effect of statutory provisions of a jurisdictional nature relating to the sentencing and treatment of juvenile offenders. Statutory provisions of that sort have perforce to be prescribed by reference to specific ages and do not apply outside them. In the present context that is not the position and it makes no sense for substantially different sentences to be imposed upon young offenders, particularly co-offenders sentenced at the same time, simply upon a very slight difference in age. It would require unequivocal language in a statute and in addition powerful reasons in support of judicial dicta to be construed in that way. Where therefore a youthful offender may be marginally beyond 15, that would not in our view preclude him from some discount appropriate to the particular circumstances. Nor would his being marginally below 15 necessarily assure him of a discount; in that regard what was said in Li Chi Ko was that extreme youth "might" be an exceptional circumstance. It was unrealistic to differentiate between the applicants in the way the judge did. Clearly both should in the circumstances of this case be allowed some credit for their youth.

36. The other point which arose was the extent to which it was proper to take cognisance of the very serious injuries sustained by the husband on the 2nd count having regard to the fact that these men were not charged with assault.

37. Mr Bruce QC submitted that having regard to the facts of this case it could properly be said that the assault was an integral part of the robbery and the court should take cognisance of the serious injuries suffered by the husband. We agree that in this case this approach is in order. We would simply add that there may well be other cases when this would not be so.

38. Overall we consider that having regard to the extreme youth of these offenders the sentences which were imposed were manifestly excessive.

39. We consider that a proper sentence for the A1 having regard to the totality principle would have been 10 years and for A2 8 years.

40. We grant leave for this application to proceed and treating it as the appeal, order that the sentences be adjusted as follows:

A1:	1st count - 8 years 2nd count - 10 years.

to be served concurrently.

A2: 2nd count - 8 years.

41. To this extent these appeals are successful.