The Queen v. Chung Man Kit

CACC000354/1989

Headnote : Multiple lift robberies: youth: immediate confessions: pleas: quantum of sentence.

BETWEEN

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Coram: Silke, V.-P., Power & Macdougall, JJ.A.

Date of Hearing: 7 March 1990

Date of Judgment: 7 March 1990

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. The applicant, Chung Man Kit, appeared for trial in the High Court before Hooper, J. on an indictment containing 14 counts. He pleaded guilty to 12 counts and no evidence was offered on those remaining. All were offences of robbery. He received a sentence of 9 years on each of the counts to run concurrently and there was activated a 4 months' suspended sentence, the offences having been committed during the period of suspension. He now seeks leave to appeal against sentence.

2. The robberies took place between 10th September and 23rd December 1988 in various estates in Kowloon. All were lift robberies and of lone females. A paper cutter was used to intimidate and, in two cases, to cause minor injuries to the victims.

3. The applicant was arrested after the final robbery and upon arrest made full confessions as a result of which many of the offences with which he was charged came to light and, in turn, evidence was discovered which supported his complicity. He was aged between 20 and 21 at the time of the offences. He had a previous record going back to 1981 when he was found guilty of a breach of a probation order and sent to a boy's home. In 1987 he was fined for common assault and the 4 months' imprisonment suspended, which was activated by the trial judge, was imposed for an offence of occasioning actual bodily harm on 9th September 1988.

4. He also had convictions for possession of dangerous drugs and a final conviction for the possession of dangerous drugs for the purpose of unlawful trafficking for which he was sentenced to the Drug Addiction Treatment Centre. He was serving that sentence at the time when these sentences were imposed upon him. He had also been twice. in the Drug Addiction Treatment Centre prior to that.

5. He became a drug addict at a very young age, 16. He also admitted to being involved in triad activities at the age of 15. He had worked in a hair saloon, close to the time of these offences,  earning $2,500 a month. He had co-habited with a girl by whom he had a son and there is another child on the way.

6. Before passing the sentence he did the trial judge obtained a Probation Officer's Report. He did not, and rightly, seek any report from the Commissioner of Correctional Services for at the time of conviction the applicant was over 21 and there was no question of any Training Centre Order being made in respect of him.

7. It was accepted that he had a difficult family background and that he had had a poor response to earlier attempts to reform him.

8. Mr. Wong, who appears for him in this Court, has submitted to us that the sentence was excessive and that the starting point taken by the trial judge of "something excess of 12 years" was too high and that sufficient discount had not been given him in respect of the pleas combined as they were with the immediate confessions to the police. He has also asked us to say that sufficient consideration was not given to the youth of the applicant.

9. On this last submission it was made clear in a number of cases, in particular The Queen v. Kwok Man Hung and Others, Criminal Appeal 17 of 1983 (unreported) and The Queen v. Chan Chi Fai and Others, Criminal Appeals No. 593 and 643 of 1983 (unreported) that where a series of robberies is concerned the youth of those who commit them is not a strong mitigating factor. As was said, and as is apposite to the offences here, in The Queen v. Chan Chi Fai at page 4:

"This type of offence is unfortunately a very common one. The youth of applicants appearing in this Court, and of defendants at trial, is of course of very grave concern. But we feel where there is a multiplicity of offences of this nature that the public interest must be served over and above the individual interests of the applicants despite their youth."

10. These offences were of their kind serious but were not the most serious form of robbery. It must have been a highly unpleasant experience for the unfortunate ladies concerned but that having been said, we think that when the trial judge made reference to the starting point after trial of in excess of 12 years he was starting too high. He did make reference to the pleas of guilty, the age, the background of the applicant and his previous convictions and that he considered these offences to be serious ones.

11. In our judgment a starting point of somewhere in the region of 10 years would have been appropriate. We are of the view that in the light of the circumstances which we have set out, in particular the immediate confessions to the police as a result of which many of the offences came to light, and bearing in mind the nature of the offences themselves, that a sentence on plea of 7 years' imprisonment as a totality would have been right.

12. Therefore, we would give leave, treat the hearing as the hearing of the appeal and reduce the sentences on each of the counts from 9 years to 7 years to run concurrently.

Representation:

H.Y. Wong, Esq. (D.L.A.) for Applicant

Steve Chin, Esq. for Crown/Respondent