The Attorney General v. Leung Hung-kwong and Another

CAAR000015/1981

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Coram: Roberts, C.J., Li & Silke, JJ.A.

Date of Judgment: 7th December 1981

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DECISION

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1. The Attorney General has sought a review of the sentences imposed upon the two respondents, LEUNG Hung-kwong and CHAN Chi-wah, who were the first and third defendants at the trial.

2. The first defendant, LEUNG Hung-kwong, pleaded guilty to two charges of robbery. The third defendant, CHAN Chi-wah, was convicted of one charge of robbery after pleading not guilty. Both defendants were ordered to be detained in a detention centre.

Facts

3. The facts of the first charge, in which both the defendants were involved, were that Mr. NG Sik-fai was awoken from his sleep by the doorbell of his flat in the early hours of the morning of the 29th January. When he opened the door these two defendants and another man, named TSANG Chi-wah, pushed their way into his flat, threatened him that he would be stabbed to death if he moved or shouted, tied and gagged him and ransacked the flat. The intruders left soon afterwards taking with them a substantial amount of cash and a number of valuable objects.

4. With regard to the second charge, the two victims of this robbery, a Mr. Hui and a Mr. Cheung, were passengers in a lift in premises in Gloucester Road, late in the evening of 12th February, this year. When the lift arrived at the eleventh floor, two armed men rushed into the lift, which they took to the fifth floor. Here the victims were dragged out of the lift and forced to the nearby staircase, where each of them was robbed of cash and personal valuables.

Gravity of offences

5. Both offences are of a grave nature. Indeed, in premises robberies are so serious and so prevalent that this court found it necessary, earlier this year, to issue new guidelines, suggesting that the courts should impose heavier sentences for them (see MO Kwong-sang (Crim. App. 359/81)).

6. Mr. Wong argued that these guidelines, and earlier authorities on the subject of sentencing, have left it open to a trial judge to impose a sentence well below that of the normal bracket, if the circumstances of the offence or the background, antecedents and history of the offender justify a different course.

7. With this proposition we fully agree. We were referred to a passage from the judgment of Huggins, J.A. in the Attorney General v. Fung Wai-tai & Another (App. for Review 9/80) in which he made it clear that, although the court had been referred to a large number of cases to establish that there was a band of sentences, they were unable to accept the principle that this was a band below which the courts should not go.

8. Nevertheless, in-premises robberies are so serious that it must be unusual for a court to deal with those convicted of them by means of an order for detention in a detention centre.

First defendant

9. The trial judge, in a postscript to his reasons for sentence, admits that he was not familiar with recent authorities on the question of the proper sentence for these offences and that, had he been, he would have been inclined to impose a sentence of from two to four years on the first defendant.

10. The only factors of significance in favour of the first defendant were that he was 20 years old at the time of the offence, that he had a clear record and that he pleaded guilty to the charges on the second day of the trial.

11. The judge noted, in favour of the first defendant, that he did not personally take part in the tying up of the victim. As to this, if a group of armed men bursts into domestic premises, there is very little difference in the blameworthiness of those who tie up the victim as opposed to those who do not. They are all part of a common expedition for which they must all bear an equal responsibility, save only where it can be shown that some of those taking part in it have gone beyond what was agreed in advance as the object of the expedition.

12. The first defendant is said to have acted only as a look-out in the second robbery. But we do not consider that this significantly lessens the seriousness of the part which he played in it.

13. The judge called for reports from the Commissioner of Prisons and the Probation Officer. The report of the latter was not favourable. The report of the Commissioner of Prisons said that this defendant was suitable for detention in either a detention centre or a training centre but advised that a detention centre would be better.

14. We have been unable to find in the circumstances of this offence, or in the background of the first defendant, any justification for removing him from the normal type of punishment which should follow serious robberies of this kind.

15. Were this offence committed to-day, on the basis of the tariff which was suggested in the case of MO Kwong-sang, it is likely that a sentence of something like seven to eight years would have been imposed.

16. However, we are informed that TSANG Chi-wah, aged 18, pleaded guilty to the same two offences as the first defendant and was sentenced to four years' imprisonment concurrent on each charge. And that KAN Yiu-ming, aged 20, pleaded guilty to the second charge and was sentenced to four years' imprisonment.

17. Bearing in mind these sentences, we consider that the judge ought to have imposed concurrent sentences of four years on the first charge and five years on the second, the enhanced sentence on the second charge being a recognition of the fact that it was a second similar grave offence committed within two weeks of the first.

18. Making the usual reduction which is applied in applications for review, we quash the order for detention made in relation to the first defendant and substitute for it concurrent sentences of three years on the first charge and three and a half years on the second charge.

Second defendant

19. The second defendant was aged barely 19 at the time of the offence of which he was convicted, namely, the in-premises robbery of the 29th January. He comes of a family background of some difficulty, as unhappily so do a high proportion of those who engage in robbery.

20. While we emphasize that courts always retain their discretion to take a more merciful approach in appropriate circumstances, we think that it must be unusual for a 19 year old man, who takes part in an invasion of private premises at night, when the members of the gang are armed with knives and the occupants are subjected to physical violence, to receive anything other than an immediate sentence of imprisonment.

21. In this instance, as we have said, a sentence of four years' imprisonment was imposed upon an 18 year old man, TSANG Chi-wah, for his part in the offence of which the second defendant was found guilty. TSANG Chi-wah also had in his favour the fact that he pleaded guilty, which the second defendant did not.

22. We would have thought that a proper sentence which should have been imposed upon the second defendant would have been one of four years' imprisonment. Because this is an application for review, we will quash the order for detention in relation to the second defendant and substitute a sentence of two and a half years' imprisonment.

Representation:

G.W. Alderdice Senior Asst. Crown Prosecutor for Applicant

A. Wong (T.S. Tong & Co.) for 1st Respondent 2nd Respondent in person.