Chan Shek-kwong v. The Queen

CACC000294/1981

Coram: C.J., Leonard and Li JJA

Date of Judgment: 1st September, 1981

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JUDGMENT

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Li, J.A.:

1. The appellant pleaded guilty to seven charges of robbery. The charges indicate that all 7 robberies were committed with others not in custody in a period of eight months between April and December 1980.

2. The robberies all took the same pattern. They waylaid householders at the threshold of their homes, furced them back into their premises, tied them up, ransacked their homes and relieved them of their properties. In one instance knives were used to threaten, though not to wound. In another instance the victims were a woman and two children.

3. The appellant left his finger-prints on articles left in each of the homes he entered. When he was caught it was hardly surprising that he pleaded guilty and confessed to the crimes. He had no other alternative.

4. The appellant has a clear record. Upon conviction the trial judge sentenced him to six years imprisonment. He now appeals against sentence. In his reasons for sentence the learned trial judge said that he was of the opinion that he had no alternative method of dealing with the appellant having regard to matters of public interests. He went on to say:

"Having said that, however, I would be less than honestly if I were not to say that upon the same anxious reflection, I have not some reservation about the length of the sentence of six years imprisonment which are imposed. Six years imprisonment is, I realize, a very long time for youth of sixteen, even if it would be served exclusively in the company of other young criminals between the age of 14 and under training standard conditions, that is a programme equally divided between schooling and vocational training. I can say no more than that. Having slapped upon it, while I still consider that there was no acceptable alternatives to prison in this case, six years might have been excessive and four years might have been more appropriate for youth of this age."

5. At the time of the sentence the appellant was barely over sixteen. The judge did not call for any report from the probation officer or from the Commissioner of Prison. When the appellant was before another division of this court such reports were ordered.

6. Mr. Lee who appears for the appellant is not criticizing the judge for not having called for these reports. He freely and properly concedes, that in view of the provisions in the 109(A) of the Criminal Procedures Ordinance: robbery being one of the accepted offences, no report is necessary. However, Mr. Lee raises a number of points which, he contends, should deserve our careful consideration.

7. The first and foremost of these points is that when the court sentence a young offender consideration must be given to the balance between public interests and the interests of the offender. He then continues to argue forcibly that youth is a very strong mitigating factor. The other points Mr. Lee raises are that the appellant has been most remorseful, that he cooperated with the Police and is still prepared to do so. He pleaded guilty to all the charges. Further by his own mistake the appellant has brought misery to his parents and to his sisters.

8. The appellant is undoubtedly a very young person, he committed these offences when he was under sixteen years old. But the reports by the probation officer and the intake officer of the detention centre and training centre, show that he is not remorseful but evasive, stubborn and unruly. This is quite contrary to what Mr. Lee says of the appellant. The probation officer does not recommend probation. The intake officer suggests a Training Centre Order. Robbery is a very serious offence. The appellant's case is not one solitary lapse of conduct but a series of seven robberies within a matter of eight months. Even taking the appellant's personal interest into consideration public interest dictates that this is not a case for a Training Centre Order.

9. In the case of Ng Pun Kau v. The Queen the appellant was 17 years and 8 months old. He also had a clear record. He committed only one robbery. A sentence of four years was upheld by the Court of Appeal. The appellant is two years younger than the appellant in the Ng Pun Kau case.

10. Taking all into consideration and the young age of this appellant we are of the opinion that the sentence of six years is unduly long as appreciated by the trial judge. We appreciate freelingly the misery he has brought to members of his family, particularly his sister. The sisters are not to blame. The parents must take a portion of their responsibility. Perhaps parents in this community should know that they must keep their sons in control. If they don't, there are always other people who are capable of doing so and one of such people are the courts.

11. In the present case we are prepared to take a lenient view. We feel that a sentence of three years is appropriate. We are of the opinion that it is not an appropriate case to send the appellant to a training centre. Accordingly the appeal is allowed to the extent that the sentence be reduced to one of three years imprisonment.

Representation:

Mr. Martin Lee, Q.C. & Mr. Patrick Chan (S.Y. Kwan & Co.) for Appellant

Mr. Marshall for Crown