The Attorney General v. Wong Wai-ming

CAAR000009/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 9 OF 1972.

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Coram: Rigby, C.J., Huggins & Leonard, JJ.

Date of Judgment: 19th October, 1972.

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DECISION

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Rigby, C.J.:

1. This is an application by the Attorney General for review of the sentence of a magistrate on the grounds of manifest inadequacy; leave to apply having been refused by the single judge but granted by this court.

2. The facts may be briefly stated. Shortly before midnight on the 18th July a public light bus was travelling on the road between Hennessy Road and Shaukiwan. The solitary occupant of the bus was a male passenger sitting at the rear of the bus. At a stop, the bus was boarded by two persons who sat next to the solitary male occupant, told him to hand over his money and apparently threatened him. The nature of the threat is not disclosed but the passenger, without any apparent demur and certainly without any resistance, produced $40 from his pocket and handed it over to the two persons who then returned $10 to him. His watch was also taken from him. The two persons then got off the bus. The victim went home and later made a report to the police. At about mid-day the following day the present respondent was arrested on suspicion of being in unlawful possession of a wrist watch. Upon interrogation the respondent admitted that he and another person had been concerned in the public light bus incident of the previous evening and the wrist watch in his possession resulted from that incident. The wrist watch was later identified by the victim as the watch which he had been compelled to hand over the previous evening. However, at an identification parade then held the victim was unable to identify the respondent as one of the two persons who accosted him in the public light bus the previous evening. The respondent pleaded guilty to the charge. It is pertinent to observe that there is no suggestion in this case that a knife was used or displayed by the respondent and his companion. The respondent is aged 21 and is, therefore, not qualified for detention in a Detention Centre or Training Centre. He has a clear record and apart from minor hawking offences, committed eight years ago, has never been in trouble before. The probation officer's report was distinctly favourable to him and the respondent was in employment working at a plastic factory at the time this offence was committed. According to the probation officer's report, he expressed remorse for the offence he had committed and said that he had been persuaded by his companion, a comparative stranger to him, to commit the offence. The probation officer did not even consider that probation was necessary in this case but suggested that it might be an appropriate case for a suspended sentence. In the accepted graduation of penalties, a suspended sentence is in fact a very much more severe penalty than a probation order. However, the offence of robbery is one of the excepted offences for which a suspended sentence is not available. For those who seek to criticise from time to time the lack of care and consideration allegedly shown by magistrates in respect of cases coming before them, it is a measure of the interest shown by magistrates in their work that in this case the magistrate took the trouble to get in touch with the probation officer, pointed out to him that this was not a case in which he could impose a suspended sentence, and asked the probation officer if he would be prepared to take the defendant as a probationer - a request to which the probation officer readily agreed. In those circumstances, bearing in mind the age of the offender, his clear record and the good report of the probation officer as to his past character and background, the learned magistrate placed the offender on probation for 18 months.

3. It is against that order that the Attorney General now applies for review on the ground that the sentence was manifestly inadequate. It was urged before us that the mere fact that a weapon was not produced or brandished by the offenders should carry little or no weight when assessing sentence since members of the public are, or may be, put in fear whether or not any weapon is produced and even assume, or may assume, that such a weapon is in existence and is likely to produced if any resistance is offered.

4. It may well be that when the carrying of weapons by robbers is wide-spread it would be rash for an intended victim to assume that his assailant is unarmed, but we are wholly unable to accept that that justifies the court's punishing an unarmed robber in the same way as an armed robber. It must surely be reasonable to believe that a person - and particularly a man - endowed with any degree of courage whatsoever, will not lightly hand over his personal possessions without some show of protest or even resistance. The degree of protest and extent of resistance will necessarily depend not only on the character and personality of the actual or potential victim but also the circumstances surrounding the incident itself e.g. the time and place at which it occurs, the number of persons concerned and the threat or show of force offered. The actual presence of a knife or other offensive weapon - and, still more, the use of it - must necessarily considerably aggravate the offence and the sentence to be imposed. In the case before us, we repeat, there is no suggestion of any knife or other offensive weapon being in existence; there was no evidence as to the nature and extent of the threat - assuming there was a threat - made before the victim surrendered his property, and no degree of resistance, or even a protest, appears to have been shown by the victim before he did so. In our view these are all matters clearly relevant to sentence. It is necessary to emphasize that the powers conferred upon the Attorney General, under section 81A of the Criminal Procedure Ordinance, are of a novel and drastic nature; there is a clear distinction between a sentence which might be regarded by some persons as on the lenient side or even too lenient, and one which, in the terms of the section itself, is manifestly inadequate. Section 81A is intended to provide for sentences coming within the latter category and not the former, and it is important that this distinction should be kept clearly in mind.

5. This application is accordingly dismissed and the order of the magistrate confirmed.

Representation: