The Queen v. Lam Hoi-hung

CACC000247/1984

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. McMullin, V-P., Silke, J.A. & Kempster, J.

Date: 17th August, 1984.

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JUDGMENT

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McMullin, V-P.  :

1. The applicant applies for leave to appeal against a sentence of 3 years imposed upon him following his conviction. upon a single count of burglary. This is another of the cases arising from the well-known "taxi-riots" situation which existed in Hong Kong on the 13th of January of this year. We have only yesterday dealt with a number of other applicants who were involved in those events.

2. The circumstances in this case were that the applicant was observed leaving a shoe shop at 1:00 a.m. at a time when large numbers of people in a disturbed mood were still about in Nathan Road. A police constable on duty saw him emerge from the shop carrying some shoes. He followed him and arrested him and found that he was in possession of two pairs of ladies shoes and one pair of men's shoes.

3. The applicant at the time of this offence was 19 years of age. He had been in regular employment in a series of restaurants during the four years which elapsed following his first coming to Hong Kong. Throughout that time he had worked steadily and had advanced in salary from $850 a month to some $2,000 per month which he was earning while free upon bail in connection with the present offence.

4. In passing sentence Judge Blackwell once again referred to the circumstances which prevailed and he repeated the phrase which he had previously used saying that he thought that condign punishment should be visited upon persons who took advantage of the riotous circumstances.

5. No doubt, though he did not specifically say so, he had the provisions of section 109A in mind when he called for the relevant reports. Having perused those reports he nevertheless thought that the circumstances demanded an immediate custodial sentence. He imposed a sentence in scale with those imposed upon applicants with whom we dealt yesterday, that is the sentence of 3 years.

6. We have seen the reports and it may be said at once that the probation report is very favourable.  The same may be said about the Intake Report. The probation report suggests probation with residential requirements and Mr. Westbrook, who once again has presented the case for his client fairly and persuasively, suggests that perhaps Training Centre treatment would be suitable.

7. One of the defendants dealt with yesterday was also 19 years of age. He was sentenced to 3 years imprisonment.  He was however a man with a substantial previous record and we did not interfere with that sentence.

8. Mr. Westbrook relies upon the obvious distinction between the background of the defendant in that case and the circumstances attending the applicant here. He suggests also that the nature of the property itself is some indication of reckless and foolish rather than seriously criminal behaviour on the part of the defendant in seizing upon a sudden opportunity.

9. We incline to the view that there may be some substance in that suggestion. In particular, however, we are impressed with the agreed facts as to his previous behaviour and record since he entered the territory 4 years ago.

10. We do not think however that Training Centre treatment would be appropriate in the present case where a young man of good character is in steady employment.

11. We cannot say that the judge was wrong in holding that prison sentences were demanded by this kind of behaviour, under the circumstances than prevailing but in view of the favourable reports and of the matters generally urged upon us by counsel, we will in this case out of clemency grant the application and, treating the hearing of the application as the hearing of the appeal, allow the appeal, set aside the sentence of three years, and impose instead a sentence of two years which will be suspended for a period of two years.

Representation:

Mr. S. Westbrook (D.L.A.) assigned for the Applicant.

Mr. I. G. Cross & Mr. A. Tsang for Respondent/Crown.