Li Chi Wah v. R.

CACC000265/1994

IN THE COURT OF APPEAL

1994, No. 265
(Criminal)

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Coram: Hon. Macdougall, V.P., Penlington, J.A. and Bewley, J.

Date of hearing: 23 November 1994

Date of judgment: 23 November 1994

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence.

2. The applicant pleaded guilty to one offence of robbery. It was what is all too common in Hong Kong, a lift robbery, committed with another person who was not apprehended. Property to the value of $25,200 was taken and it seems that, as the applicant was apprehended very soon after the robbery with only a small proportion of the stolen property on his person, the other culprit must have escaped with major part of the proceeds of the robbery, mainly gold jewellery.

3. The trial judge having exhaustively considered the relevant authorities, imposed a sentence of 3 1/2 years imprisonment and Mr. Ma who appears for him here does not quarrel with that sentence which indeed seems, if anything, lenient.

4. The judge however also imposed a compensation order pursuant to s.73 of the Criminal Procedure Ordinance whereby the applicant is to repay to the victim the value of the stolen goods, $25,200. The judge ordered that if the compensation was not paid within a period of 3 years, the applicant should be brought back to court to explain the default. With normal remission the applicant will be released after 2 years and 4 months so this would give him a period of some 8 months to repay this amount. It was said before the judge that before the offence the applicant was working for his uncle in a restaurant and was earning about $8,000 a month of which however he was paying $4,000 a month to his family because he had two younger brothers who were still being educated.

5. In Inwood (1974) 60 Cr. App. Rep. 70 Scarman L.J. said:

"A compensation order should not be made if it had the effect of putting temptation in a person's way on release from prison to go out and commit another offence."

and in Hancox (referred to in Thomas on Sentencing 2nd Ed. 330) it was said that

"when this man comes out of prison he going to have a difficult enough task in rehabilitating himself if he tries to do so."

A compensation order was then quashed.

6. Compensation orders are normally reserved for cases where there is evidence that the defendant has assets and it is a short-cut method of, in effect, giving the victim a judgment which can be enforced without having to go through the time and expense of taking civil proceedings. It is not normally used where the amount involved is such that the defendant clearly cannot pay that amount and will thereby possibly be lured back into crime. For those reasons, we think that the amount of the order here is too much.

7. However, as a matter of principle, it is only right that in appropriate circumstances the victim of a crime, be it a violent crime or a fraud, should be compensated for his loss. We consider that here the appellant does have a reasonable prospect of employment on his release and that he should make some effort to repay the victim. We note that at the trial the appellant did have some $5,000 in bail money but his counsel was instructed not to make that available.

8. We therefore grant the application, treat this as the hearing of the appeal and order that the amount of compensation be reduced from $25,200 to $10,000.

Representation:

Mr. Andrew Ma instructed by D.L.A. for the Applicant

Mr. D.G. Saw, Senior Crown Counsel, for the Crown