Ho Wing-kai v. The Queen

CACC000371/1980

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Coram: Huggins and Cons, JJ.A., and Bewley, J.

Date of Judgment: 25th July 1980.

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JUDGMENT

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Bewley, J.:

1. The Appellant pleaded guilty in Kowloon District Court to two charges of robbery. On 4th and 6th November last year he robbed two taxi drivers in similar circumstances. On each occasion he threatened his victim with a knife - the second driver was actually cut on the hand - and stole money and personal possessions. He was caught after the second robbery when the taxi driver raised a hue and cry.

2. The Appellant told the police that he had robbed because he had lost all his money gambling. He is twenty-one and has no previous convictions. He came from China illegally in 1978. The trial judge called for reports from a probation officer and the Commissioner of Prisons, which were unfavourable and, in particular, indicated a lack of remorse on the part of the Appellant.

3. The judge took the guilty plea into account and decided that discipline and training were needed. He ordered that the Appellant be detained in a detention centre. That was on 23rd April. It is not clear why he was so long on remand: perhaps there was a change of plea.

4. The Appellant applied for leave to appeal against sentence on 28th April. No grounds of appeal were attached to this application.

5. On 30th April the Appellant complained of dizziness after physical training and drill in the sun. He told the staff that he had been suffering epileptic attacks since 1973. This was apparently his first mention of epilepsy since his arrest. On three subsequent occasions the Appellant was seen to get muscle spasm accompanied by dizziness. Consequently, the medical officer at Sha Tsui Detention Centre referred him to Siu Lam Psychiatric Centre for an electro-encephalography examination on 12th May. The result was normal, but arrangements were made for him to see a consultant at Queen Elizabeth Hospital.

6. Meanwhile, on 26th May, the application to the single judge was refused on the ground that the sentence was lenient. The application was renewed and the form received by the court on 31st May contained grounds of appeal, in which the Appellant complained that, due to epilepsy, he could not do heavy work and requested punishment other than the detention centre.

7. On 9th June the Appellant was seen by a consultant in Queen Elizabeth and certain tests were carried out. He was seen again on 7th July. He told the doctor that since 1973 he had suffered from recurrent loss of consciousness, accompanied by convulsion, frothing at the mouth and teeth clenching. This is a clinical diagnosis of epilepsy, which does seem to be a very real possibility. The truth will not be known until October, when the Appellant is due to have a brain scan. By that time, however, the Appellant may have been discharged from the detention centre. Meanwhile he is unable to take part in the normal detention centre programme and the main object of the exercise - discipline and training - is lost.

8. As the single judge rightly pointed out, this was a lenient sentence. Had the trial judge taken a different view and imposed a prison sentence, it is likely that it would have been considerably longer than twelve months, which is the maximum period a detainee over twenty-one may be kept in a detention centre.

9. These were extremely serious robberies. Attacks on taxi drivers usually attract, and deserve, substantial deterrent sentences. The raison d'etre of the detention order having fallen away, we have decided to impose a prison sentence that will meet the justice of the case. The only mitigating factors are the clear record and guilty plea. Taking these into account, we quash the detention centre order and substitute for it a prison sentence of three years on each charge, to run concurrently. To that extent the appeal is allowed.

25th July 1980.

Representation:

Appellant in person.

Mr. Lucas, Deputy Crown Prosecutor, for respondent.