The Attorney General v. Law Ying Cheung

CAAR000008/1981

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Coram: Cons, J.A., O'Connor and Silke, JJ.

Date of Judgment: 29th June 1981

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JUDGMENT

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Cons, J.A.:

1. The defendant to whom these proceedings relate was convicted in the District Court of robbery. Together with three others he gained entrance into a guest-room in a Mongkok hotel where some fifteen people were gathered for a meeting, some of whom were playing mahjong. One of the other robbers held a pistol. The people inside were tied up and relieved of their valuables, mostly cash and watches.

2. The defendant was arrested a few days later and in due course brought to trial. He pleaded not guilty but was convicted by the learned District Judge, basically on the confession he had made to the police.

3. Between the time of his arrest and his trial the defendant was at liberty on bail, bail being in his own recognizance of $5,000 with a surety in the same amount and daily reporting to the police. Nevertheless while he was so on bail he committed a burglary for which he was also arrested, brought to trial and convicted. Although the burglary was committed after the robbery, the conviction was before that for the robbery. It is unfortunate that those responsible for the prosecutions did not ensure that the two cases were dealt with together.

4. For the burglary the defendant was sentenced to be detained in a detention centre. The District Judge who dealt with the robbery made a similar order. It may be that her sentence was unlawful in that she did not first call for a report from the Commissioner of Prisons in accordance with sec 4(4) of the Detention Centres Ordinance, Cap 239. She relied instead upon the reports from the Probation Officer and the Commissioner which had been put in for the earlier conviction. She had apparently been told that that had been only one week before. That was wrong. The time gap was in fact nearer six weeks. Be that as it may, the only ground on which the Attorney asks us to review the sentence is that the circumstances of the offence demand the imposition of a period of imprisonment rather than a period of Detention Centre Training. In making her decision the learned District Judge appears to have been influenced by four factors.

5. Firstly, she says she was reluctant to set aside the sentence which another court had "only one week ago considered appropriate for the rehabilitation of this offender".

6. Secondly, "the defendant, being only of the age of 21, should not be sentenced to prison, like those not quite reached that age, unless no alternative method of dealing with him is appropriate". We assume she had in mind sec 109A of the Criminal Procedure Ordinance.

7. Thirdly, she thought that the close proximity of the two offences by a first offender indicated a sudden waywardness rather than a deliquent tendency.

8. Fourthly, that no weapon was used by the defendant and that he apparently came to know of the pistol used by the other robber only at the time that it was actually produced in the robbery.

9. With every respect to the learned District Judge we feel that she has considered the matter too much from one side only. The rehabilitation of a particular offender although a matter of considerable importance, is not the sole object to the court's sentence. There are, as McMullin, J.A. remarked in December last year, "wider issues of public policy which, in addition, concern the judge".⁽¹⁾

10. Pursuant to that policy it is accepted practice to impose substantial terms of imprisonment, even upon young offenders, where violence is involved. The legislature has clearly indicated approval of the practice by excepting from the operation of sec 109A those persons, inter alia, who are convicted of robbery.

11. We accept that where a person for the first time commits an offence and, finding that he gets away with it, is tempted to commit another, and then finding that he gets away with that other, commits yet a further offence and so on again and again until he is finally caught, it may in the first instance be proper to treat him as a first offender. The position is vastly different where a person is caught at his first attempt but while on bail awaiting trial and sentence deliberately goes out to commit a more serious offence. That does not indicate a sudden fall to temptation. That indicates a heart which is already hardened, a feature of the defendant's character commented upon in both reports. The Probation Officer noted further that the defendant had joined the "Wo Shing Wo" some three years before.

12. Finally, although it may perhaps be that the defendant was not aware of the pistol until it was actually produced, he must have expected that some weapons would be taken and if necessary would be used. Four men cannot hope to subdue a room full of people with their bare hands.

13. Robbery is usually a very grave crime. The present instance is no exception. It was a robbery which for all practical purposes was an invasion of private premises. It took place in the very small hours of the morning. Violence was used as well as threatened. Persons were forcibly tied up. One person was struck on the head with the butt of the pistol. Two others were left injured.

14. We have been referred to other cases of this court where, in not dissimilar circumstances, substantial terms of imprisonment were imposed on young offenders with clear records. We respectfully agree with those other decisions. In our view the District Judge below ought to have imposed a sentence in the region of five years. As this is an application for review we are bound by previous authority to impose something less than that.

15. For these reasons we set aside the Detention Centre Order and substitute in its place a sentence of imprisonment for four years.

Representation:

Marshall, counsel for the Crown/Applicant.

Respondent in person.

(1) R. v. NG Pun-kau Cr. App. 849 of 1980