The Attorney General v. Chau Wai-ting
Read the full judgment text of CAAR 4/1974 on BabelCite. This Court of Appeal judgment.
1. These are three applications for review of sentences Passed by a District Court Judge.
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CAAR000004/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) ----------------- APPLICATION FOR REVIEW NO. 4 OF 1974 -----------------
APPLICATION FOR REVIEW NO. 5 OF 1974 -----------------
APPLICATION FOR REVIEW NO. 6 OF 1974 -----------------
Coram: Briggs, C.J. and Pickering, J. Date of Judgment: 4th March 1974 ----------------- JUDGMENT ----------------- 1. These are three applications for review of sentences Passed by a District Court Judge. 2. In Application No.4, one Chau Wai-ting pleaded guilty on December 27th, 1973, to two charges of robbery. On the 10th January, 1974 he was sentenced to be detained in a drug addiction treatment centre. Both offences occurred on the 12th December, 1973. The respondent and another man, who was armed with a knife, accosted a certain Mr. Au near a lift and robbed him of his personal possessions, the value of which was $930. The scene of the crime was close to Mr. Au's office and one of his workmates, hearing noises, came out of the office and with the assistance of other people, seized the respondent. The other robber escaped. The respondent was taken to a police station where a certain Mr. Li was reporting a robbery which occurred earlier that morning. Mr. Li recognized the respondent as one of two men who had robbed him of various articles to the value of $350. Mr. Li reported that though the respondent was not armed the other man involved in the robbery was. Certain of the property which was stolen from Mr. Li and Mr. Au was found on the person of the respondent. The respondent readily admitted both offences. 3. The respondent is now aged 20 and he has had three previous convictions for minor offences, the most important one of which was for being in possession of dangerous drugs for which he was given a conditional discharge and bound over for twelve months on the 3rd October, 1973. The trial judge had before him a report from a probation officer in which it is said that the respondent has been addicted to drugs for at least three years. In mitigation, the respondent pleaded to go to Shek Kwu Chau Rehabilitation Centre to rid himself of his addiction and before us he asked to be alloyed to remain at the Tai Lam Addiction Treatment Centre, where he said he was now working. 4. The second case is the case of Lau Kam-tim. This respondent pleaded guilty to one offence of robbery. On December 13th, he and another man boarded a taxi. He sat in the rear seat while the other man sat in front. It was approximately 12 midnight. The respondent grabbed the driver's neck from behind while the other man threatened him with a razor blade. The robbery yielded $80 which was taken from the shirt pocket of the driver. The driver put up a fight and the two robbers fled. However, the respondent was caught as he was running away. His companion escaped. The respondent was sentenced to be detained in an addiction treatment centre on the 27th December, 1973. 5. This respondent is 23 years of age and has one previous conviction. He was conditionally discharged and bound over for twelve months for being in possession of dangerous drugs on the 18th July, 1973. The probation officer's report states that he has been drug dependent since 1971 and this report contains the following statement:-
6. There is no record that the respondent asked the trial judge to take into consideration the fact that he was addicted to drugs. He merely asked for a chance and in the review proceedings before us he asked to be allowed to serve the rest of his sentence at the Tai Lam Addiction Treatment Centre. 7. The third case is that of Tung Kan-kong. This respondent pleaded guilty to one offence of robbery on December 27th, 1973. On December 10th, he robbed a person in Hennessy Road of a watch and a few dollars. He used threats and punched the victim in the stomach. The respondent ran away upon the appearance of a police constable. He was caught and the watch and money were returned to the victim. When arrested, he said he had only been out of prison for a month and could not find employment. 8. At the time of his plea, the respondent asked for two other offences to be taken into consideration. These offences were two other robberies which occurred on December 8th, 1973. On the first occasion he robbed a woman of her handbag and the particulars of the charge stated that he "dragged her to a car park in order to achieve this aim". On the second occasion he robbed a woman of a ring and some money in a lift. 9. The respondent was sentenced to be detained in an addiction treatment centre on January 10th, 1974. The respondent is aged 36 and has an appalling record. His first conviction was when he was 17 years of age, which was significantly for the offence of being in possession of heroin. For this he was given four months' imprisonment. In all he has had 29 previous convictions, of which five were for drug offences. His last conviction was on July 16th, 1973. From 1953 until now, a period of 21 years, he has been sentenced to sentences which total 22 years and five months. In addition, he has been sentenced to twenty strokes and to orders for police supervision. 10. The probation officer reported that the respondent has been addicted to drugs since he was 12 years old. It is said that at the time of the offence his habit was costing him $45 a day. The respondent told the probation officer that he now realized the worthlessness of his life and that he had at last come to believe that he must rid himself of his addiction; and that he was determined to do so. The probation officer's report is rather sceptical as to this for the respondent has never voluntarily sought a cure. In court, the respondent pleaded for a chance to get rid of his bad habits. 11. Mr. Sceats, with his usual moderation, said that the sentences of detention in an addiction treatment centre are wrong in principle, or at least they are manifestly inadequate. He pointed out the huge increase in robberies which had occurred recently. In 1973, there were 8,000 robberies in Hong Kong and the worse period was in December when these present offences occurred. 12. The second point made by Mr. Sceats was that the normal sentence for a robbery to-day was a custodial sentence. See the case of the Attorney General v. Shum Shun-hong(1). Of course, an order for detention in an addiction treatment centre is a custodial sentence, so Mr. Sceats's argument really is that such a sentence is far too light a sentence, at any rate so far as the present cases are concerned. We take notice of the fact that it is not uncommon for a person found guilty of a robbery similar to the present case to receive a sentence of 18 months to two years while the average time a person stays in an addiction treatment centre is about nine months. Also that if a man is cured of his addiction the community will benefit. 13. The final point made was that the trial judge had given undue weight to the particular offenders and reliance was placed on the headnote of the case The Attorney General v. Cheung Chi-man(2). This was a case of robbery and the headnote reads as follows:-
Mr. Sceats also quoted from the case of Re Applications for review of certain sentences by the Attorney General(3) where part of the headnote reads as follows:-
14. There is also the fact that by far the majority of persons sentenced by the courts for all crimes are drug addicts, or at least take drugs from time to time. It has been estimated that 75 ½ per cent of all the offenders in prison during the period from July to September were dependent on drugs. 15. Treatment for drug addiction forms part of the curriculum of all prison institutions. 16. We do not think that a sentence of detention in an addiction treatment centre is wrong in principle in a case of robbery. Each case must depend upon its own facts. But we think that it is only in the rarest case that such an order should be made. A court might pass such a sentence in a case where no violence is used, no weapon displayed and where there is no accomplice and where the desire of the offender to cure himself of his addiction is proved to the satisfaction of the court. There must be factors which are exceptional and compelling before such a sentence is passed. 17. The trial judge gave detailed reasons for his decisions in each of the three cases. In the first case, No.4, he clearly had in mind the necessity of the need to protect the community from what has almost become an epidemic of robberies. He was satisfied on the evidence before him that the respondent committed the offence in order to obtain money to pay for drugs to satisfy his addiction, and that once that addiction has been conquered, it would be unlikely that the respondent will again commit the offence. As we have said, he was convicted for being in possession of dangerous drugs in October 1973 when he was bound over. It may well be, as Mr. Sceats suggested, that this was the proper time for an addiction treatment centre order to have been made. The respondent has not served a custodial sentence before. He has been in an addiction centre since December 1973 which is nearly two months' ago and from his appearance and attitude in the dock, it is obvious that he has, physically at least, greatly benefited from his stay. We consider this case to be a borderline case and have made our decision with considerable anxiety. 18. However, the facts of the two charges show that though the respondent himself did not use violence, he had an accomplice who was armed with a knife and the victim in each case was threatened with violence. In the circumstances, the application for review must be allowed. 19. The same applies to the second case, No. 5. The offence for which he was convicted was of a particularly cowardly nature but taxi drivers need to be protected. This respondent has not suffered a custodial sentence before and has only one previous conviction, namely, for being in possession of dangerous drugs. We were alarmed by that portion of the report of the probation officer which we have quoted above. Though the trial judge deals with this aspect of the case we cannot overlook the fact that the offence must have been carefully planned, the respondent had an accomplice and a weapon was displayed and violence used. 20. In this case, therefore, the application is also allowed. 21. The third case, No.6, stands on a very different footing. We can appreciate the desire of the trial judge to assist a person who has had such a long and unfortunate record. However, the judge himself seems to think there is not much of a chance that he will turn over a new leaf at such a late date. This is not surprising. The relevant parts of the probation officer's report are referred to above. Not only must the public be protected but also other inmates of the addiction treatment centre. We do not think it is right that such a hardened criminal should be allowed to mix with persons who, for the most part, are young offenders and who are victims of their own frailty, and are anxious to make a new start. 22. We think that the application in the third case, No.6, must be allowed. 23. We sentence the respondent in each case to a term of eighteen months' imprisonment so as to date as if these sentences had been imposed by the trial judge. This will mean that the period that the respondents have spent in the drug addiction treatment centre will count towards sentence. Representation: B.A. Sceats, Assistant to Law Officers for Crown/Applicant Respondents in person. (1) (1972) H.K.L.R. 254. (2) (1972) H.K.L.R. 358. (3) (1972) H.K.L.R. 370. |