The Queen v. Lau Ming Sang

CACC000150/1988

IN THE COURT OF APPEAL

BETWEEN

____________

Coram: Cons, V.-P., Fuad, V.-P. & Mayo, J.

Date of Hearing: 7th September 1988

Date of Judgment: 7th September 1988

______________

J U D G M E N T

______________

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

1. The Applicant, Lau Ming Sang, appeared before the High Court (Hooper J. and a jury) on an indictment charging him jointly with another man with two Counts of robbery. On 26th February 1988 on unanimous verdicts he was convicted on Count 1 and acquitted on Count 2. He was sentenced on 14th March to 7 years' imprisonment and sought leave to appeal to this Court against both conviction and sentence. He has today abandoned the application in relation to his conviction.

2. The robbery of which the Applicant was convicted took place at a clinic in Fu Yuen Street, Mongkok at about 8:15 p.m. on 17th September 1987. It was near closing time and all the patients had left. The prosecution case was that the Applicant was one of three men who participated in the robbery in which the proprietress and two of her nurses were robbed of money and various items.

3. The Applicant was born in June 1968 and the sentence was imposed when he was three months or so short of his 20th birthday. He has been in trouble before. In 1983 he was sent to a Training Centre for trafficking in dangerous drugs; in 1984 he was given a conditional discharge for being a member of a triad society and in 1986 he received a sentence of 6 months imprisonment for indecently assaulting a woman.

4. The judge was told that after his release from prison the Applicant was recalled to the Training Centre at the end of 1986 in view of poor response to supervision and for a breach of the supervision requirements imposed upon him. He was discharged towards the end of March 1987 and the offence with which this application is concerned was committed before the expiry of his after-care supervision period, which would have expired on 2nd October 1988.

5. In his report to the Court, the Commissioner of Correctional Services pointed out that the Applicant was not, by law, eligible for detention in a Detention Centre and gave the opinion that in view of his earlier poor response no useful purpose would be served if he were to be sent to a Training Centre again.

6. A helpful probation report was before the judge and revealed that the Applicant's family had moved home in an attempt to remove him from the influence of the undesirable friends with whom he had been consorting but the move had not fulfilled their hopes. While pleading for a lenient sentence, his family acknowledged that they could not exercise effective control over the Applicant's unbridled behaviour. The probation officer felt that probation would not be effective and did not recommend it.

7. In addressing the Applicant before sentence the judge said inter alia, that the robbery was a serious one, committed by three men involving private premises. Knives were used to threaten the victims who were all females, and they were tied up. The judge told the Applicant that he had "abused repeated rehabilitative chances" given to him, and that he did not think that a Training Centre Order would be appropriate.

8. Mr. Buchanan who represents the Applicant before us emphasized that the Applicant himself was not one of those who were carrying knives, but it must be said that knives were carried by the other two men and were used before the three victims were tied up; and the Applicant himself helped to tie them up.

9. Mr. Buchanan drew our attention to certain remarks made by the judge when imposing sentence. What the judge had said was

"And it is particularly distasteful that you should commit an offence of this sort, together with persons - at least one of them who was much younger than yourself the sort of persons you should be setting an example to and not leading astray.

10. Mr. Buchanan submitted that there was no evidence to justify this conclusion, but the judge had heard all the evidence led during the trial, and by what he said we do not understand him to be saying, as was suggested, that it had been established that the Applicant had taken the leading part in the robbery. Certainly by going with a considerably younger man he was, by encouragement, helping to lead him astray.

11. Mr. Buchanan also relies on what he submits is the disparity in the sentences respectively imposed upon the Applicant and the 2nd Defendant. The 2nd Defendant was 16 years old at the time when the offence was committed and he was still just 16 when he was sentenced. He was ordered to be sent to a Training Centre.

12. Mr. Buchanan suggests that the Applicant is suffering under a real and justified sense of grievance in view of the very different way in which he has been treated. Of course, appellate courts must have regard to grave disparities in deciding whether a sentence on a co-defendant is to be maintained. However, in this case, we do not think that any question of disparity arises in its true sense. The sentence imposed upon the 2nd Defendant was one selected by the judge in view of his record and his age, and was designed to help in his rehabilitation. We do not think it is comparing like with like to contrast the Training Centre Order with the sentence of imprisonment imposed on the Applicant in the circumstances.

13. We are of the opinion that in view of the serious nature of the offence, the judge was fully justified in imposing a 7-year sentence on the Applicant and we do not think it would be right to reduce a proper sentence simply because the judge thought it appropriate to make the order he did in respect of the 2nd Defendant. The Applicant himself is indeed a young man but sadly young men of his age all too often commit this type of robbery.

14. We are not persuaded that we should interfere with the sentence imposed by the judge and, therefore, this application is refused.

Representation:

Mr. Robert Buchanan (D.L.A.) for Applicant.

Mr. I. G. Cross (Crown Prosecutor) for the Crown/Respondent.