Wong Chi-hung @ Wong Kam-wing v. The Queen

CACC000266/1972

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 266 OF 1972

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Coram: Leonard J. in Court.

Date of Judgment: 30th March, 1972.

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JUDGMENT

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1. This is an appeal against sentence. On the 15th January 1972 the appellant participated with others in a serious robbery at 94, Prince Edward Road, 6 young men entered these premises on the morning of the 15th January 1972 armed with choppers and knives. They threatened the watchman and other occupants of the premises - a restaurant - with these weapons and others which they found on premises and imprisoned the occupants inside the store room in the ground floor of the premises. They then ransacked the premises and forced upon drawers and stole a total of $8,500 in cash. They attempted to remove 2 safes from the restaurant but were unsuccessful in this attempt. The robbery was obviously planned.

2. The accused was with others arrested on the 8th of March and brought before the Magistrate for the first time in respect of this offence on the 9th March, 1972 when he pleaded guilty to the robbery in question and admitted to having received $1000 from the proceeds.

3. On the 22nd January 1972 the appellant was caught in the act of stealing a handbag from a woman in the street. He was brought before a Magistrate for this offence of theft on the 24th January 1972. He pleaded guilty to it and asked for a similar offence committed on the 20th January 1972 to be taken into consideration. Having obtained probation officer's and training centre's reports, that Magistrate imposed a sentence of 8 months imprisonment and ordered that that sentence be suspended for a period of 12 months. That Magistrate was of course, unaware of the earlier offence of robbery committed by the appellant on the 15th of January 1972 the sentence in respect of which is now under appeal. The suspended sentence was imposed on the 7th February 1972. On the 9th of March 1972 the appellant pleaded guilty to this charge of robbery and admitted the previous conviction for theft and the still earlier conviction for demanding with menaces in respect of which he had been sent to the training centre on the 2nd of June 1970.

4. The learned Magistrate when imposing the sentence now appealed from recited the dates of the robbery and of the thefts and stated: "Bearing in mind his age andhis previous record, the seriousness of the offence, the degree of violence used and the frequency of such crimes of this nature in the Colony, I consider the appropriate sentence in all the circumstances was to order that he receives 12 strokes of the cane and because of the fact that his previous convictions had only taken place on the 7th February 1972 and the sentence of 8 months had been suspended, I order that the said suspended sentence should also takes effect." Having regard to section 109 of the Criminal Procedure Ordinance this seems to me to have been wrong. The appellant had not been convicted of any offence occurring within the "operational period" of the suspended sentence. It was therefore not open to the learned Magistrate to order that that suspended sentence should take effect and Crown Counsel very properly indicated to me that he could not support the order the suspended sentence should take effect. I therefore quash this part of the order.

5. The robbery to which the appellant had pleaded guilty in the Court below was undoubtedly a serious one committed by men armed with choppers and other weapons. However these weapons were not used to inflict injury on any person but only to threaten. The appellant had no previous conviction involving violence to the person. In these circumstances I consider corporal punishment inappropriate to the offence and record of the appellant and I quash the order for strokes. I had the advantage of having before me the probation officer's report and the training centre report which had been requested by the learned Magistrate who imposed the sentence of 8 months imprisonment suspended for the theft. The Commissioner of Prisons was of the opinion that a further period of detention in a training centre would serve no useful purpose. According to the Probation Officer's report this young man had had a most unfortunate history. His father was a permanent invalid and the mother had deserted the appellant when he was a young boy. He had a long experience of institutional life having been kept in the Po Leung Kok for a period of about 4 years and in the St. Christopher's Home for a short period, and having later been sent to the Castle Peak Boys' Home and finally to the Shek Pek Training Centre. The probation officer remarked that he seemed: "too tough for probation". At that time, of course, everyone was unaware that he had committed this serious and planned robbery before his arrest in respect of the theft. Bearing in mind this young man's history, and also the danger of his becoming completely institutionalized by a long term of imprisonment I nevertheless consider that a deterrent sentence is called for. I allow the appeal to the extent that the suspended sentence shall stand but shall not take effect and to the extent that the sentence imposing strokes is quashed but a sentence of 18 months imprisonment is imposed in lieu thereof. This sentence shall run from the date of conviction.

30th March, 1972.

Representation:

Appellant in person.

E. Li for Respondent.

(Oral judgment reduced into writing)