Wong Ching Sim and Another v. The Queen

CACC000153/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 153 OF 1972.

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Coram: Briggs, Huggins and Leonard, JJ.

Date of Judgment:13 April 1972

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JUDGMENT

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1. The two Appellants WONG Ching-sim and CHEUNG Tim pleaded guilty to robbery contrary to s.10 of the Theft Ordinance. On New Year's day 1972 at about 4 a.m. the two Appellants with one other went to the staircase at No.80, Connaught Road, Central. There were two men sleeping there, who were woken up and ordered to knock up the occupants of the 3rd floor, a goldsmith's workshop. The two men did this calling out that they were ill. Their voices were recognised so the door was opened and the Appellants and their companion entered.

2. There were seven workers inside. The Appellants and their companion were armed with knives. They bound and gagged the seven workers and the two men to whom the door had been opened. They then ransacked the premises.

3. They stole a quantity of watches, a considerable quantity of gold and silver, $1,190 in cash and a certain amount of jewellery. The total value of the articles and cash stolen came to $36,000. In addition they attempted to open a safe which was in the workshop but failed to do so. They remained on the premises for about 3 hours.

4. The Appellants were arrested two days later and the property stolen was recovered. The Appellants pleaded guilty to the offence on January 27th 1972 and on February 10th 1972 were sentenced to 18 months imprisonment each. They appealed against these sentences.

5. The first Appellant WONG Ching-sim is over 19 years of age, and had on previous convictions. The second Appellant is 17. He had been put on probation in December 1971 for the offence of assault with intent to rob. So at the time he committed this offence he was still on probation. Indeed he had been put on probation in May 1971 for the offence of being in possession of an offensive weapon. And that order also had not expired.

6. Before passing sentence the trial judge very properly called for Probation and Training Centre Reports in each case.

7. Probation was not recommended for the first Appellant, who is over 19 years old and possibly over 21. And from his record alone Probation could not be seriously considered for the second Appellant. However the Commissioner of Prisons stated in his report under the Training Centres Ordinance that the second Appellant was both mentally and physcially suitable for detention in a Training Centre. However the report went on to state this:

"I regret that there is no vacancy to accept this boy in any Training Centre at present."

8. Robbery with violence especially by young persons is an all too prevalent crime in Hong Kong. And this was a very bad case. We agree with the trial judge that a sentence of imprisonment was both appropriate and necessary in the case of the first Appellant but we consider that the sentence of 18 months passed upon him with effect from 10th February was inadequate and does not reflect the severity of the offence nor its prevalence. We therefore allowed the appeal but increased his sentence to two years imprisonment, which we ordered to run from the date of the hearing of the appeal, April 13th 1972. Had we been imposing the sentence at first instance and not increasing a sentence on appeal we would all have imposed a sentence of 2 1/2 years imprisonment at the least. The Appellant has been in custody since his arrest on January 3rd 1972. Although we increased this sentence we have given due weight to the youth of the Appellant and to the fact that he had no previous convictions.

9. It is not clear whether the trial judge would have ordered the second Appellant to be detained in a Training Centre but for the indication th t there was no vacancy, since he emphasised some aggravating factors but there is reason to think he may have been affected by this extraneous consideration introduced by the Commissioner's report. The Court is given power to make such an order when it considers such an order is appropriate. And when such an order is made it is the duty of the Executive to carry it out as in the case of any other order made by the Court. In all the circumstances we think that detention in a Training Centre was the correct sentence, whether in the event that detention will be for a period shorter or longer than the 18 months fixed by the learned judge.

10. We therefore allowed the appeal of the second Appellant and ordered that he be detained in a Training Centre for a period not less than 9 months or for more than 3 years.

Representation:

Appellants in person.

Carolan, C.C. for Respondent.