HKSAR v. TAI MAN YU AND ANOTHER

CACC164/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.164 OF 2004

(ON APPEAL FROM DCCC1186 OF 2003)

---------------------------------

------------------------

-----------------------

J U D G M E N T

-----------------------

Lunn J (giving the judgment of the Court) :

Background

1. On 15 March 2004, the 1st and 2nd applicants pleaded guilty to a single charge of robbery, contrary to section 10 of the Theft Ordinance, Cap.210, in which offence they were jointly charged. Having called for and considered reports as to the suitability for the detention of both applicants in a training centre, on 31 March 2004, Judge Chua imposed sentences of five years and four months' imprisonment upon each of the applicants.

FACTS

2. The applicants accepted, by their pleas of guilty and acceptance of the summary of facts, that they had jointly robbed Mrs Chan Wong Fung Chun of money, items of personal jewellery and property on 1 October 2003, at Room B, 1/F, No.212 Fuk Wing Street, Shamshuipo. Mrs Chan worked as an estate agent and had been lured to that place by the applicants who had posed as persons seeking to rent accommodation. Mrs Chan took the applicants to view the premises. Earlier that morning, the applicants had bought a knife and a roll of adhesive tape. At the door of the premises, the 2nd applicant pushed Mrs Chan into the premises and confronted her with a knife declaring robbery. Mrs Chan refused their demand that she surrender her handbag whereupon the applicants assaulted her, the 2nd applicant punching her head. Then, Mrs Chan was tied to a water pipe and her mouth gagged by the application of adhesive tape. Mrs Chan's left arm below the elbow was cut three times with the knife. Thereafter, the applicants absconded with property belonging to Mrs Chan with a value of more than $26,000.

3. Before making good their escape, the applicants returned to Mrs Chan's business premises where they removed details that she had noted down of their personal particulars. Thereafter, both applicants left Hong Kong for the Mainland within four or five hours of the robbery.

4. On their return to Hong Kong four days later, both applicants were arrested and, under caution, admitted the offence. Of the property stolen from Mrs Chan by the applicants, only a wrist watch was recovered.

5. The 2nd applicant was identified in an identification parade by Mrs Chan as one of the two robbers. The fingerprints of both the 1st and 2nd applicants were found on the adhesive tapes which had been used to tie up Mrs Chan.

REASONS FOR SENTENCE

6. In her Reasons for Sentence, the Judge noted that both applicants were described as being suitable for detention in a training centre in reports which she had ordered for assessment of that suitability. However, the Judge went on to note that in the judgment of the Court of Final Appeal in HKSAR v. Wong Chun Cheong [2001] 4 HKCFAR 12, Ribeiro PJ had observed of the terms of section 4(1) of the Training Centre Ordinance, Cap.280 that in determining the appropriate sentence to impose upon a young offender, the court was required to have regard, inter alia, not only to the characteristics of the offender but also "the circumstances of the offence".

7. Of the circumstances of the offence, the Judge noted that the decision of the Court of Appeal in R. v. Mo Kwong Sang [1981] 1 HKLR 610 provided guidelines for sentencing in cases of armed robbery. In this case she noted that the victim had been tied up, assaulted and cut with the knife displayed in the robbery, which robbery comprised two robbers. Of the violence done to the victim the judge described it as "gratuitous" and "needless". The Judge stated that the victim, Mrs Chan, had appeared before her in open court. She judged her still to be badly distressed by her experiences, the victim having burst into tears whilst describing events.

8. Having regard to the planning and all the circumstances of the commission of the robbery, she took a starting point of eight years' imprisonment as being appropriate.

9. Next, the Judge went on to consider another limb of section 4(1) of the Training Centre Ordinance, namely, whether or not the court was satisfied that it was "in the interest of the community" that the applicants should undergo rehabilitation in a training centre. She determined that notwithstanding the ages of the applicants, the 1st applicant being 19 years of age and the 2nd applicant 16, that training centre was an option "far too lenient" for them.

10. In the result, the 1st and 2nd applicants were sentenced to five years and four months' imprisonment, having been given a discount of one-third from a starting point of eight years' imprisonment.

PERFECTED GROUNDS OF APPEAL AGAINST SENTENCE

11. Mr Hoosen, for the applicants, listed three grounds of appeal. By Grounds 1 and 2, it was contended that the Judge had erred in not taking into account the youth and previous good character of the applicants and the recommendations of the training centre reports that they were suitable for training centre detention. By Ground 3, it is submitted that the Judge had applied guidelines for drug trafficking cases and was in error so to do.

12. Today, at the outset, counsel for the applicants indicated that the applicants do not ask for the imposition of a training centre order in substitution for the sentences of imprisonment, rather, with some reluctance, he asked this court for a reduction in the length of the prison sentence imposed upon the applicants.

(a) Ground 3

13. The submission made pursuant to Ground 3 can be dealt with immediately and dismissed. In her considerations of section 4(1) of the Training Centre Ordinance, the Judge had regard to the requirement of the subsection that the court had regard to "the interest of the community". It was in that context that she made reference to the judgment of the Court of Appeal in AG v. Suen Yuen Ming [1989] 2 HKLR 403, at 404, in which Silke VP addressed the apparent conflict between the interest of the young offender and the interest of the community. That passage was cited by Ribeiro PJ in HKSAR v. Wong Chun Cheong. The passage cited by the Judge to the effect that youth, by itself, is no immunity from substantial sentences of imprisonment in the context of drug trafficking is the passage that immediately precedes that quoted by Ribeiro PJ from Silke VP. It is in that context that the Judge went on to say, in regard to the serious offence with which she was dealing, in particular the needless violence and suffering inflicted upon the victim : "Your youth will not excuse you." In the circumstances of this case, that statement is entirely accurate. This proposed ground of appeal fails.

(b) Grounds 1 and 2

14. As Mr Wong has pointed out in his helpful written submission, in R. v. Mo Kwong Sang, this court said this at 611E :

".... little account can be given to the previously clear record of anyone who takes part in an 'armed robbery'."

The obvious appropriateness of that statement was confirmed in the judgment of this court in Secretary for Justice v. Ma Ping Wah [2001] 1 HKLRD 312, at 319G. Stuart-Moore VP went on to say :

".... It is also well settled that youth is a mitigating factor of little weight unless there is 'extreme youth'. ...."

15. The ambit of the expression "extreme youth" was addressed in the judgment of this court in HKSAR v. Law Ka Kit [2003] 2 HKC 178. In the context of one of the applicants who was aged 14 1/2 years at the time of the offence and 15 years at the date of sentence, Stock JA, in the judgment of the court, said at p.186, paras. 26 and 27 :

".... There are cogent considerations which militate against sentencing persons of this age to prison. One is naturally cognisant of the immaturity of youth (though maturity will differ widely from offender to offender); the pressures and influences which can be brought to bear, especially when one notices a youth committing offences in the company or upon the direction of others who are older; and of the desirability of rehabilitating young offenders in settings more conducive to rehabilitation than may result from long term imprisonment.

Yet it has for long been recognised that 'youth may pale into insignificance because of the magnitude or prevalence of the offence': see Re Applications for Review of Sentence [1972] HKLR 370, 417. Cases of serious robbery fall within the band of cases where youth is not a strong mitigating factor: see R v Chung Man Kit [1990] 1 HKC 87; and Secretary for Justice v Li Man Biu (CAAR 4/2000, 17 November 2000, unreported). .... What is 'extreme youth' is not a matter of exact mathematics, although someone under the age of 15, as was D2, falls within this category."

16. At the time of the commission of the offence, 1 October 2003, the 2nd applicant was 15 years and 11 months of age having been born on 27 October 1987, whereas the 1st applicant was about one month short of his 19th birthday. Neither fell within the category of 'extreme youth'. Both applicants were treated as having no previous criminal convictions. Notwithstanding his relative youth, the Judge described the 2nd applicant as having taken the lead-role in the offence. That is clearly borne out by the summary of facts. It was the 2nd applicant who pushed the female victim into the flat and brandished the knife at her, punching her in her head when she refused to handover her handbag. Both applicants tied up the victim to a water pipe and gagged her with adhesive tapes.

17. Whilst the younger 2nd applicant might have adopted the lead-role in the commission of the offence, the Judge was fully justified in determining that the 1st applicant was in the "plot from the beginning". Clearly, there had been a degree of pre-planning followed by a considered disposal of the material that incriminated them culminating in their mutual flight to the Mainland.

18. The training centre suitability reports described both applicants as having come to Hong Kong from the Mainland of which they were residents in order to join their families. It appears that they encountered difficulties on arrival in Hong Kong, no doubt no greater than many thousands of other young Mainland residents newly arrived in Hong Kong. Certainly, there is nothing whatsoever in those training centre suitability reports which would have justified the Judge taking any other course in sentencing other than imposing a substantial period of imprisonment. Although the sentences imposed upon the applicants are substantial terms of imprisonment, given the aggravating factors of the commission of this robbery we are satisfied that those sentences are not manifestly excessive but are appropriate and justified. These proposed grounds of appeal fail.

CONCLUSION

19. Accordingly, the applications for leave to appeal against sentence of both the 1st and 2nd applicants are dismissed.